Citation Nr: 22016409 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 15-37 973A DATE: March 22, 2022 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. Basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. Service connection has been established for posttraumatic stress disorder (PTSD) rated as 70 percent disabling; lumbar spine degenerative joint disease rated as 20 percent disabling; and right lower extremity radiculopathy rated as 20 percent disabling. The Veteran has a combined 80 percent service-connected disability rating. 2. The service-connected disabilities are of such severity to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. 3. Basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is established, CONCLUSIONS OF LAW 1. The criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to September 1971. He served in the Republic of Vietnam. TDIU The Veteran contends that a TDIU is warranted as the service-connected disabilities render him unable to secure or maintain substantially gainful employment. TDIU may be assigned where the schedular rating is less than total if it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Total ratings for compensation purposes are assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice connected disabilities or previous unemployability status will be disregarded where the percentages for the service connected disability or disabilities are met and in the judgment of the rating agency such service connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). Service connection has been established for PTSD rated as 70 percent disabling; lumbar spine degenerative joint disease rated as 20 percent disabling; and right lower extremity radiculopathy rated as 20 percent disabling. The Veteran has a combined 80 percent service-connected disability rating. Therefore, the Veteran meets the schedular criteria for consideration of the assigment of a TDIU. 38 C.F.R. § 4.16(a). A January 2018 vocational evaluation from C. Young, M.A, C.R.C., conveys that the Veteran was unemployable and "there is no doubt in my mind that it is as likely as not that [the Veteran] would be unable to secure or follow a gainful occupation as a result of his service-connected disabilities." In his November 2020 Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran stated that he had last worked on a full time basis since July 2014. The Veteran meets the schedular criteria for a TDIU. He has reported not working on a full time basis since July 2014. A January 2018 vocational evaluation determined that the service connected disabilities rendered the Veteran unable to secure and follow substantially gainful employment. The combined effect of the service-connected disabilities alone causes the Veteran to be unable to secure or follow substantially gainful employment. Therefore, a TDIU is granted. 38 C.F.R. § 4.16(a). The Board has considered whether special monthly compensation at the housebound rate is warranted. Entitlement to a TDIU based on the combined impact of the service-connected PTSD, lumbar spine degenerative joint disease, and right lower extremity radiculopathy has been established. The Veteran does not have a single service connected disability rated at 100 percent or a TDIU due to a single disability and an additional service connected disability ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. Therefore, an award of special monthly compensation at the housebound rate is not warranted. Basic Eligibility for Dependents' Educational Assistance Benefits Basic eligibility for Dependents' Educational Assistance benefits exists where a veteran was discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. The Board has granted a TDIU and basic eligibility for Dependents' Educational Assistance Benefits is therefore established. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.