Citation Nr: 21040869 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 20-02 197A DATE: July 7, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's physical and mental disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was last before the Board in March 2021 where it was remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to a TDIU 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, 529 (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 (2017). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's service-connected disabilities are: PTSD, rated at 70 percent disabling; bilateral hearing loss, rated at 40 percent disabling; and tinnitus, rated at 10 percent disabling. The Veteran's combined rating is 80 percent disabling. Thus, the schedular criteria for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met. On his March 2018 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated he last worked in January 2015 as a self-employed general contractor. The record indicates the Veteran's education level is reported as 4 years of college. Id. Upon review of the record, and after resolving all doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted, based on the combined effects of his service-connected disabilities. Recent medical records note psychiatric symptoms including: suspiciousness, depressed mood, disturbances of motivation and mood, mild memory loss, chronic sleep impairment, speech intermittently irrelevant, difficulty in adapting to stressful circumstances, difficulty in adapting to work, inability to establish and maintain effective relationships, speech intermittently obscure, difficulty in adapting to a worklike setting, anxiety, speech intermittently illogical, and difficulty in establishing and maintaining effective work and social relationships. The August 2017 VA examiner concluded the Veteran has occupational and social impairment with reduced reliability and productivity. Further, an August 2020 VA examination noted that the Veteran's hearing loss and tinnitus impacts his ability to work because he "can hardly function with respect to conversations," and his tinnitus impacts his ability to hear people. His service-connected physical and mental disability symptoms, considered together, as likely as not render the Veteran unable to obtain or maintain gainful employment consistent with his work history. Accordingly, entitlement to a TDIU is warranted. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (responsibility for the ultimate TDIU determination is on the VA, not a medical examiner). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, Associate 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.