Citation Nr: 21041960 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-11 023A DATE: July 10, 2021 ORDER The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The combination of the Veteran's service-connected disabilities precludes him from maintaining substantially gainful employment. CONCLUSION OF LAW The criteria to establish entitlement to a TDIU have been met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Navy from December 1988 to January 1993. He received the Southwest Asia Service Medal, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in February 2021, at which time it was remanded as the appeal for entitlement to a TDIU was inextricably intertwined with the Veteran's pending service connection claim for an acquired psychiatric disorder. On remand, the RO granted entitlement to service connection for a chronic adjustment disorder. As such, the Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran's representative filed a statement in October 2020 that he was "releasing" the Veteran as a client, "effective immediately." As the representative did not withdraw from his representation in compliance with relevant regulations, this representative remains appointed for the matter on appeal and is listed on this decision. See e.g., 38 C.F.R. §§ 14.631, 20.608, 20.6. The claim of entitlement to a TDIU. The Veteran contends that his service-connected disabilities, specifically his skin condition and acquired psychiatric disorder, impact his ability to work. See e.g., May 2011 Notice of Disagreement (NOD); May 2021 Statement. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following service connected disabilities: scars, disfigurement of the head, neck and face, residuals of cystic acne to include pseudofolliculitis (rated 50 percent, from September 3, 2009); painful and unstable scars of the head, face, and neck, with painful scar of the right lower extremity (rated 40 percent from September 3, 2009); chronic adjustment disorder (rated 30 percent from February 17, 2009; migraines (rated 30 percent from January 9, 2020); residual scarring of the posterior trunk (rated zero percent from August 21, 2019 and at 10 percent from January 9, 2020). The Veteran's cystic acne condition was previously rated at 30 percent disabling from May 26, 1993 and from 60 percent from August 30, 2002 to September 03, 2009. The Veteran is also currently service connected for hypertension, residual scarring of the anterior trunk, and for scar of the right lower extremity, with each condition assigned a noncompensable (zero percent) rating. The Veteran's combined disabilities have been rated as 30 percent disabling from May 26, 1993; 60 percent from August 30, 2002; 70 percent from February 17, 2009; 80 percent from September 3, 2009; and 90 percent from January 9, 2020. Based on the forgoing, the Veteran has had one disability rated 60 percent or more or at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the residual physical effects of his cystic acne, his chronic adjustment disorder, his migraines, and scars. The evidence of record reflects that the Veteran has completed high school and some college, and he reports a history of training in accounting and bookkeeping. He has worked in a variety of positions, including some managerial roles and as a janitor, however, lay statements from the Veteran and his prior employers indicate that the Veteran has lost work due to his service-connected disabilities. One prior employer, who has the initials N.R., and who hired the Veteran on a part-time basis performing janitorial duties, stated that she observed the Veteran display mood swings and have outbursts, which she considered related to his skin disorder and psychiatric disability. See June 2014 Statement. This statement and others indicate that customers and co-workers would often stare, question, or taunt the Veteran about his skin condition, which led to more than one episode of the Veteran reacting violently and being terminated. See e.g., June 2010 statement by J.M. The Veteran has also submitted competent, credible lay evidence regarding the cumulative effect of his conditions. See May 2021 Statement. According to this evidence, which the Board finds probative, the Veteran's unstable scars can at times cause "unbearable" pain, require application of two types of topical creams several times per day, and require monthly injections to manage pain and outbreaks of the condition. The Veteran's ability to secure and follow a substantially gainful occupation is further impacted by the mental effects of his physical disabilities. Notably, his psychiatric condition includes symptoms of depression related to his skin disorder, and the Veteran's lay statements indicate that he is visually reminded of his condition every day. Lay statements from other witnesses indicate that objective observers such as co-workers, friends, and former employers have found the Veteran's skin condition "shocking," among other things. Additionally, the Veteran's migraine condition impairs his mental concentration and cognitive acuity during headache episodes. See May 2020 Headaches Disability Benefits Questionnaire. The Board finds that the aggregate functional effects of the Veteran's service-connected conditions make it impossible for the Veteran to obtain and follow a substantially gainful occupation. (Continued on the following page.) Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The combination and severity of the Veteran's physical and mental impairments, when considered together, preclude him from obtaining and keeping such employment. Accordingly, a TDIU is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.