Citation Nr: 21031495 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-42 553 DATE: May 24, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran's service-connected persistent depressive disorder with mild alcohol use disorder precludes her from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1981 to September 1986. This issues of entitlement to service connection for an acquired psychiatric disability and entitlement to a TDIU were previously before the Board in November 2018 when they were remanded for further development. Subsequently, in a July 2020 rating decision, the Veteran was awarded service connection for persistent depressive disorder with mild alcohol use disorder. As this represents a full grant of the benefits sought with respect to the claim for entitlement to service connection for an acquired psychiatric disability, the issue is no longer on appeal. Entitlement to a TDIU The Veteran contends that she is unable to obtain substantially gainful employment as a result of her service-connected psychiatric disability. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. The Veteran has been awarded service connection for persistent depressive disorder with mild alcohol use disorder at 70 percent disabling from June 4, 2014. The record reveals that the Veteran last worked full time in September 2003 as an automotive worker doing checking and packing. The Veteran's employer noted that the reason for termination of employment was due to her being placed on extended disability benefits, which she has not gotten compensated for since August 2010. See VA Form 21-4192. The Veteran reported that since her separation from service, she has had four jobs, all of which were factory jobs. See March 2015 VA Initial Posttraumatic Stress Disorder (PTSD) examination. The Veteran has also reported that she has not been able to obtain or maintain employment in the last 11 years due to her psychiatric disorder. See June 2014 statement. Additionally, the Veteran explained that she has worked for three companies with EAP programs, taking advantage of such programs when upper management would become aware of her behavior issues. See August 2016 VA Form-9. Private treatment records from July 2004 show that the Veteran reported being afraid of her coworkers and was unable to work due to feeling depressed. Additionally, the private medical records indicate that the Veteran was on medical leave since 2002 due to a nervous breakdown. At a March 2015 VA PTSD examination, the VA examiner noted that the Veteran's psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that at her last job, she was late or missed work frequently due to her depression. She reported "going through a lot of depression and I couldn't get myself motivated enough to get up and do what I was supposed to do." She added that she had "problems performing work duties" because she could not stay focused. The Veteran was noted to have attended three years of college, majoring in journalism. She was not able to complete her degree due to the lack of financial or emotional support. After service, the Veteran reported taking a paralegal course. The VA examiner noted that the Veteran's "occupational impairment is noted in being socially detached at work, missing work, going to work late because she was depressed and difficulty staying focused at work." After a careful review of the evidence of record, the Board finds that the evidence indicates that the Veteran's service-connected psychiatric disability renders her unable to secure or follow a substantially gainful occupation. (Continued on the next page) The Veteran has a history of working in factories, most recently as a checker and packer at an automotive facility. The Board finds that the Veteran's fear of coworkers, lack of motivation due to her depression, and inability to stay focused due to her psychiatric disability has precluded her from obtaining or maintaining substantially gainful employment. Notably, the Veteran was put on extended medical disability in 2002 due to a nervous breakdown associated with her service-connected disability. Accordingly, the Board concludes that entitlement to a TDIU is warranted. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.