Citation Nr: A24077631 Decision Date: 11/22/24 Archive Date: 11/22/24 DOCKET NO. 210324-147597 DATE: November 22, 2024 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, he is unable to secure and follow a substantially gainful occupation as a result of his service-connected diabetes mellitus and major depressive disorder. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 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 April 2000 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) from a February 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. The Board may only consider the evidence of record at the time of notice of the February 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the March 2021 VA Form 10182. 38 C.F.R. § 20.303. In this decision, the Board grants entitlement to a TDIU. The AOJ will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran became unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. This preserves the appellant's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue decided in this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue decided in this appeal. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a TDIU is granted. The Veteran seeks entitlement to a TDIU. He asserts that he is unable to work due to his service-connected diabetes mellitus and major depressive disorder. See October 2020 VA Form 21-8940; March 2021 VA Form 10182. 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. 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 a 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 the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran had the following service-connected disabilities during the respective periods: major depressive disorder rated at 70 percent from December 11, 2020; diabetes mellitus rated at 20 percent from September 14, 2006, and 40 percent from October 22, 2019; erectile dysfunction rated as noncompensable (0 percent) from September 26, 2012; and bilateral diabetic retinopathy with nuclear sclerotic cataracts rated as noncompensable (0 percent) from October 22, 2019. The Veteran had combined ratings of 20 percent from September 14, 2006, 40 percent from October 22, 2019, and 80 percent from December 11, 2020. The regulatory percentage requirements for a TDIU were not met prior to December 11, 2020, because the Veteran did not have a single disability rated at 60 percent or above, or a single disability rated at least at 40 percent and a combined rating of at least 70 percent. Based on the 70 percent disability rating of the Veteran's major depressive disorder, the Veteran had a single disability rated at 60 percent or more effective December 11, 2020. 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. In the Veteran's Application for Increased Compensation Based on Unemployability, he reported that he last worked full-time in December 2017. See October 2020 VA Form 21-8940. He was last employed full-time as a houseman for a hotel in December 2017. He worked part-time as a driver from July 2017 to March 2020. The Board notes that the Veteran's employment as a driver was for a business owned by his brother, which could be considered employment in a protected environment. The Veteran has completed some college coursework. His past jobs included air traffic controller, crew leader, sales, and tour van driver. In an October 2019 VA medical opinion for diabetes mellitus, the examiner stated that avoidance of strenuous exercise was required due to the Veteran's history of and risk for hypoglycemic episodes. The examiner stated that the Veteran's diabetes mellitus impacted his ability to work. The Veteran reported lethargy, fatigue, always feeling sleepy. He also reported that the constant administration of insulin increased his hunger and debilitated him. He experienced excessive urination, excessive hunger, and excessive thirst. In October 2020, the Veteran underwent a VA examination for mental disorders. The examiner diagnosed the Veteran with a depressive disorder and opined that the Veteran had occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking and/or mood. His symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work-like setting), and inability to establish and maintain effective relationships. The examiner noted that the Veteran's diabetes diagnosis exacerbated his mental health symptoms. The Board notes that the Veteran was medically discharged from his military service where he was an air traffic controller because of his diabetes mellitus. In January 2021, the Veteran underwent a VA examination to determine the level of severity of his service-connected diabetes mellitus. The Veteran reported that his diabetes had changed his life. He was always tired and depressed, and the constant administration of insulin debilitated him. The examiner noted that the Veteran's condition had progressed from diabetes mellitus to diabetic retinopathy. The Veteran's diabetes was not well-controlled and had caused damage to both of his eyes. Entitlement to TDIU is a legal determination, not a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the VA adjudicator must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). In view of the foregoing, the Board concludes that the Veteran was unable to secure and follow a substantially gainful occupation as a result of his service-connected diabetes mellitus and major depressive disorder. Specifically, the Veteran's symptoms from his depressive disorder, including depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work-like setting), and inability to establish and maintain effective relationships, impacted his ability to concentrate, maintain productivity, adapt to change, get along with coworkers, and handle workplace stress. Also, the lethargy, fatigue, and sleepiness caused by the Veteran's diabetes mellitus would impact his ability to maintain productivity in any employment. His productivity would also be impacted by his need to constantly monitor and administer insulin and his need for frequent breaks due to excessive urination. For the reasons set forth above, entitlement to a TDIU is granted. The Board again notes that the AOJ will set an effective date for the award of TDIU. This preserves the appellant's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. R. G., 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.