Citation Nr: A25035374 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240606-446518 DATE: April 16, 2025 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, his service-connected disabilities, in combination, render him unable to secure and follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2024 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA). In June 2024, the Veteran timely appealed such rating decision by submitting a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested direct review of the evidence considered by Agency of Original Jurisdiction (AOJ). Therefore, the Board may only consider the evidence of record at the time of the January 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, based on the evidence the Board may consider, a TDIU is awarded herein, which is a full grant of the benefit sought on appeal. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. For the entire appeal period, which stems from July 28, 2022, the date of service connection for his acquired psychiatric disability, the Veteran's combined schedular disability rating is 90 percent prior to May 1, 2025, and 80 percent thereafter. See Rice, supra. Thus, he meets the threshold schedular criteria for a TDIU. In this regard, he is service-connected for an acquired psychiatric disability, which was initially characterized as posttraumatic stress disorder with major depressive disorder and anxious distress and currently characterized as other specified depressive disorder with anxious distress, sleep apnea, bilateral hearing loss, degenerative arthritis and degenerative disc disease of the thoracolumbar spine, status post trauma of the right knee with medial meniscectomy with osteoarthritis, tinnitus, right little finger metacarpal fracture, and right knee scar. Additionally, the record reflects that the Veteran has not worked at any point during the appeal period. Specifically, he reported that he last worked in October 2017 in his TDIU application and in August 2018 in his Social Security Administration (SSA) disability application, and his former employer reported he ceased working in October 2018. Regardless, a November 2020 SSA disability evaluation, performed prior to the appeal period, reflects that the Veteran was unemployed and deemed too disabled to seek or maintain work at such time. With regard to the Veteran's education history, he reported that he earned a high school diploma without any additional training. With respect to his work history, he reported various forms of post-service employment consistent with his reported level of education and training, primarily in materials management, purchase management, inventory control, and other warehouse and purchasing jobs. In this regard, the Veteran claims that the aforementioned job duties became increasingly difficult due to the functional impairments stemming from his physical disabilities, to include those associated with his service-connected disabilities, and his interpersonal conflicts due to his service-connected acquired psychiatric disability. The November 2020 SSA disability evaluation reflects that the Veteran was deemed too disabled to work due to a primary disability listed as diabetes mellitus and the secondary disability as glaucoma, neither of which are service-connected. However, SSA also found that the Veteran's service-connected back and knee disabilities, psychiatric disability, and bilateral hearing loss had a severe effect on his employability and, thus, significantly contributed to his unemployability. In this regard, it was noted that the Veteran experienced pain, understanding and memory limitations, and social interaction limitations, and was limited in his ability to lift and/or carry, stand and/or walk, sit, perform postural activities, understand and remember detailed instructions, maintain sustained concentration and persistence, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, and complete a normal work day and work week, with a consistent pace, without interruptions from psychiatrically based symptoms, interact appropriately with the general public, and respond appropriately to changes in the work setting. In October 2022, C.M.B., a private PA-C, MPLC, opined that the Veteran's service-connected disabilities rendered him unable to perform gainful employment. In this regard, it was noted that his right finger disability resulted in pain and difficulty with hand movements, including fine motor coordination, gripping, pushing, and pulling. C.M.B. also observed that, due to his hearing loss and tinnitus, the Veteran had difficulty understanding speech and communicating, especially on the telephone and with background noises, which impeded customer relationships and raised safety concerns. It was further observed that his back and right knee disabilities resulted in difficulty in all physical activities and, due to safety purposes, he needed to avoid foot pedals, working at heights, around moving machinery, and working on ladders or stairs. C.M.B. found that the Veteran's sleep apnea resulted in difficulty with concentration, attention, and higher-level executive functioning due to fatigue, and his social interactions and behaviors were affected due to fatigue with irritability. Ultimately, he opined that such disabilities resulted in functional impairment that precluded him from adequately and safely performing his job duties. An opinion received in May 2023 from P.D., APRN, MSN CEN, CPEN, TCRN, FNP-BC, reflects a similar opinion based on the same noted functional limitations associated with the Veteran's service-connected disabilities. Additionally, while November 2022 VA examiners opined that the Veteran's service-connected sleep apnea, right little finger disability, and right knee scar did not affect his ability to perform the duties of any potential employment, the VA orthopedic examiners found that the Veteran's back and right knee disabilities would significant impact his ability walk or stand for prolonged periods or perform tasks requiring frequent bending of the spine or knee, but nevertheless opined that he would not be precluded from sedentary work. The VA audiological examiner determined that the Veteran's bilateral hearing loss significantly interfered with his ability to hear clearly and understand conversations, even in quiet environments, and understand speech via telephone or when any background noise is present. The VA psychiatric examiner also opined that his psychiatric disability made him prone to interpersonal conflict, which could be disruptive in a vocational setting. Based on the foregoing assessments of the functional effects of the Veteran's service-connected disabilities on his ability to obtain and maintain gainful employment consistent with his high school education and work history in warehouse and purchasing jobs, the Board resolves all doubt in his favor and finds that such disabilities, in combination, would preclude such work. In this regard, the Veteran's service-connected back and right knee disabilities would interfere with his ability to perform any of the physical demands of his prior employment in such environments, which presumably involve a degree of physicality to access and manage inventory or warehouse contents. Moreover, the Veteran's hearing loss impairment makes almost all forms of conversation problematic, and his service-connected sleep apnea and psychiatric disability would further limit the efficacy of interpersonal interactions and impair his concentration, attention, and higher-level executive functioning. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that his service-connected disabilities, in combination, render him unable to secure and follow a substantially gainful occupation consistent with his education and work history. As such, a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt 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.