Case A26040828

LESLEY A. REIN · 2026 · Case ID: A26040828

GRANTED

Summary

The Veteran, an Army Veteran who served from February 1994 to February 2014, including receipt of the Combat Infantryman Badge, appeals the denial of Total Disability based on Individual Unemployability (TDIU) for the period of May 1, 2020, to May 1, 2021. The Veteran claims his service-connected PTSD, right knee meniscal tear, and irritable bowel syndrome (IBS) prevent him from securing substantially gainful employment. The Board reviewed evidence including the Veteran's testimony, his wife's statements, and multiple VA examinations from 2019-2021. The Veteran reported significant pain, fatigue, memory, concentration, and gastrointestinal issues impacting his ability to work. While VA examiners noted functional limitations, one opined he could perform sedentary work, but this did not account for the cumulative impact of all his disabilities. The Board found the evidence in approximate balance, resolving doubt in the Veteran's favor, and granted TDIU for the period. The Board noted the Veteran's last employment ended in May 2020 due to pandemic-related layoffs, but also acknowledged his belief that his work limitations contributed to his termination. The decision granted TDIU, finding the Veteran unable to secure and follow substantially gainful employment due to the combined effects of his service-connected conditions.

Rationale

Evidence in approximate balance; Benefit of the doubt resolved in Veteran's favor; Cumulative impact of service-connected disabilities preclude substantially gainful employment

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

211001-188596

Full Decision Text

Citation Nr: A26040828
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 211001-188596
DATE: April 30, 2026

ORDER

Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 2020 to May 1, 2021 is granted.

FINDING OF FACT

From May 1, 2020 to May 1, 2021, resolving all reasonable doubt in favor of the Veteran, the positive and negative evidence is in approximate balance that his service-connected disabilities preclude him from securing and following any substantially gainful employment.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU from May 1, 2020 to May 1, 2021 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 in the U.S. Army from February 1994 to February 2014. Among the other honors and awards, the Veteran is in receipt of the Combat Infantryman Badge.

The rating decision on appeal was issued in May 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the October 1, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and before the scheduled hearing, or (2) more than 90 days after the scheduled hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran and his wife testified before the undersigned Veterans Law Judge at an April 2022 Virtual hearing. A transcript of this hearing is of record.

In a June 2022 rating decision, the Veteran was granted entitlement to a TDIU, effective May 2, 2021. The Veteran filed his TDIU claim on November 2, 2020. Because the Veteran's TDIU claim has not been granted for the entire disability rating period on appeal, this issue remains on appeal and has been characterized as entitlement to a TDIU prior to May 2, 2021. See Harper v. Wilkie, 30 Vet. App. 356 (2018).

In July 2024, the Veteran's private attorney withdrew her representation. A claimant's representative may withdraw from representation "if such withdrawal would not adversely impact the claimant's interest." 38 C.F.R. §§ 14.631(c), 20.6. The Board finds that there is no adverse impact to the Veteran's interest, and the attorney withdrew representation with adequate notice and time for the Veteran to obtain new representation, which the Veteran has not done. Accordingly, the Board accepts this withdrawal of the attorney's representation. The Veteran is now unrepresented.

1. Entitlement to a TDIU prior to May 2, 2021

The Veteran asserts that his service-connected posttraumatic stress disorder (PTSD), right knee meniscal tear, and irritable bowel syndrome (IBS) prevent him from securing and following any substantially gainful employment.

At the April 2022 Board hearing, the Veteran testified that he last worked in May 2020 at an airport for a subsidiary of a major passenger airline company as a diesel mechanic. He had held that particular job for approximately two years, but he
Veteran to obtain new representation, which the Veteran has not done. Accordingly, the Board accepts this withdrawal of the attorney's representation. The Veteran is now unrepresented.

1. Entitlement to a TDIU prior to May 2, 2021

At the April 2022 Board hearing, the Veteran testified that he last worked in May 2020 at an airport for a subsidiary of a major passenger airline company as a diesel mechanic. He had held that particular job for approximately two years, but he had been working as a diesel mechanic for seven years and had been working on and off at 10 different jobs over that period of time. The Veteran said that he lost the job at the airport during the pandemic. He described how, at first, his work hours had been reduced to 30 hours a week, and then he was told that his position was being eliminated. He believed that the pandemic was the excuse to fire him and that he was fired because he was unable to fully perform at the job.

He said that the job required him to service the airline equipment, push the planes out, and carry bags. He said that he would be kneeling for quite a few hours at a time on concrete while working on the equipment. Due to the difficulty with his knee, it would take him longer to perform an oil change (i.e., 30-minute oil change took him 45 minutes to an hour), because he would have to stop, sit down, stretch, and rest. He also had difficulty reaching up or down due to his shoulder limitations. He said that he struggled with being tired because of a lack of sleep.

The Veteran and his wife recalled an incident at a prior job at a car dealership where his co-workers had learned that someone working there had PTSD. The Veteran said that they popped a tire, that it sounded like an explosion, and that he had a panic attack. His wife said that he called her from work during his lunch break and that he was really upset and had felt embarrassed by his reaction. He said that when they popped the tire, he "hit the ground." Then, two days later, the Veteran was fired from his job for being too slow. His wife explained that the Veteran had memory problems, which occurred not just at work, but also at home. His concentration was poor too, because his wife said that she would have their 10 year-old daughter watch him, because he would leave the stove on. His wife said that he had left the stove on three times from February to April of that year.

Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the U.S. Census Bureau. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The U.S. Court of Appeals for Veterans Claims (Court) defined "employment in a protected environment" within 38 C.F.R. § 4.16(a) to unambiguously mean "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 114 (2024).

When jobs are not realistically within his or her physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In
16(a). The U.S. Court of Appeals for Veterans Claims (Court) defined "employment in a protected environment" within 38 C.F.R. § 4.16(a) to unambiguously mean "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 114 (2024).

When jobs are not realistically within his or her physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Total disability ratings for compensation may be 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a).

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, skill, 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, grasping, typing, and reaching, 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.

The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his or her ability to obtain and maintain employment.

During the relevant appeal period, the Veteran meets the schedular requirements for a TDIU, as his combined evaluation is at least 90 percent (obstructive sleep apnea; PTSD; right shoulder degenerative arthritis; IBS with gastroesophageal reflux disease; right knee meniscal tear; fibromyalgia; loss of motion flexion of the right knee; bunionectomy of the right foot; tinnitus; allergic rhinitis; scar, status post bunionectomy of the right foot; and loss of motion extension of the right knee).

A careful review of the record shows that the Veteran reports that his service-connected PTSD, right knee disability, and IBS prevent him from securing or following any substantially gainful occupation. He was reportedly last employed full-time as a diesel mechanic with an airline company from May 2018 to May 1, 2020. Prior to that, he worked as a mechanic for a waste management company from June 2017 to January 2018. In early 2017, the Veteran worked as a mechanic for an environmental services company. He had earned $50,000 to $60,000 in 2016 as a diesel mechanic. He had not tried to obtain employment since he became too disabled to work in May 2020. He had obtained a GED and completed some college courses prior to entering the military. Following service, he had completed an associate's degree in "shop management." See November 2020 VA Form 21-8940, May 2019 VA examination report and May 2021 VA examination report.

At an April 2019 VA examination to evaluate the Veteran's right knee torn meniscus, he reported constant pain where it hurt to walk, climb steps, and sit. He said that he constantly had to move or his right knee pain would get worse. He said that his right knee pain interfered with his work, as he had difficulty bending and getting up and down. He reported that his right knee joint locking and pain interfered with him walking, bending, and standing for extended periods of time greater than 30 minutes. He constantly wore a knee brace for support. The April 2019 VA examiner determined that the Veteran's ability to function in an occupational environment that required prolonged standing and/or walking, climbing, bending or squatting would be significantly by his underlying right knee condition.

At a May 2019 VA psychiatric examination, the Veteran reported that "[i]t takes me longer to finish a job" due to being unable to maintain the same position for longer periods of time. He said that "[i]t makes me upset because I am slow" to complete tasks. He reported that he had been fired from a job in early 2017 for being "too slow" and "being scattered brained." He had been fired in January 2018 from a job with a waste management company after he had received "too many write-ups." The May 2019 VA examiner found that overall, the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity.

At an August 2019 VA examination to evaluate the Veteran's right shoulder degenerative arthritis, the Veteran reported that he had right shoulder pain on a daily basis. His flare-ups were reportedly severe, occurred at least once a week and lasted about eight hours. He indicated that, while working as a mechanic, using his right shoulder caused pain.

At an April 2020 VA mental health clinic visit, the Veteran reported that he sometimes had 30 bowel movements per day. His IBS would get worse when he was overwhelmed. He also reported having symptoms of anxiety, startle response, nightmares twice a week, being more forgetful than usual, irritability, angry outbursts, distancing himself from family responsibilities, and sleep disturbance.

At an April 2020 VA social work clinic visit, the Veteran indicated that his work schedule had changed and his total working hours had been reduced. He was working fewer days and longer hours (i.e., 10.5 hours a day for three days a week).

At a May 2020 VA mental health clinic visit, the Veteran reported that he had just been laid off four days earlier. He suspected that this would happen, because his hours at work had been reduced and airline activity continued to slow. He said that this would give him the opportunity to apply for work that would be less damaging to his body. He continued to having difficulty sleeping due to nightmares that occurred two to three times a week, despite the medication.

At an August 2020 VA examination to evaluate the Veteran's IBS, he reported that after eating and within five minutes, he would have to go to the bathroom with diarrhea. Some days, he would not have a bowel movement and would have constipation. He described having symptoms of abdominal distention where he said that his stomach felt bubbly on some days and felt like someone was twisting his colon. He felt bloated and filled with something even when he had not eaten. The Veteran was currently unemployed, but he had been previously worked as a mechanic servicing the equipment for three airlines. He said that he was unable to stay on the job due to the increased use of the
a week, despite the medication.

At a September 2020 VA social work clinic visit, the VA provider noted no cognitive impairments, but the Veteran's wife reported that the Veteran had some impairment. The Veteran said that except for short distances, he rarely drove, because "as my wife said it is not safe."

At a May 2021 VA psychiatric examination, the Veteran reported being part of company-wide layoffs in May 2020 from working at an aviation company where he serviced ground equipment. He now worked as a "stay-at-home dad." He described how his mental health symptoms were similar to his past examination. He was also restless and mumbled in his sleep. While driving, he would feel trapped if there was rush hour traffic, because he felt "boxed in" and reminded him of improvised explosive devices. He felt similarly in crowds. The May 2021 VA examiner concluded that due the Veteran's mental health disorder, his sleep was so disrupted that he was usually fatigued at work, making concentration and focus on work assignments difficult.

At a May 2021 VA examination to evaluate the Veteran's right knee disability, the Veteran reported having constant achiness of the right knee at rest. His right knee pain worsened with activity, such as using stairs, squatting, and even walking. He also felt like his right knee was giving way, especially on stairs, and had fallen at times. He could only stand for about 15 minutes without pain. He reported having flare-ups of right knee pain, swelling, and giving way, which occurred twice a month and lasted one to two days. During flare-ups, he had difficulty walking. The May 2021 VA examiner found that due to his right knee condition, the Veteran would have difficulty in any job requiring squatting, climbing, prolonged standing, or a lot of walking. The May 2021 VA examiner opined that it was at least as likely as not that related to his service-connected right knee disability, the Veteran was able to perform sedentary work in a normal 8-hour work day. Sedentary work is defined as: exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull; sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time; and jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

Based on a careful review of all the subjective and clinical evidence, the Board finds that from May 1, 2020 to May 1, 2021, the positive and negative evidence is in approximate balance that the Veteran's service-connected disabilities preclude him from securing and following any substantially gainful occupation. On that basis, the Boards finds that the competent and credible reports from the Veteran and his wife that he had memory and concentration problems, which affected his work performance, was consistent with the conclusion by the May 2021 VA examiner that the Veteran's sleep disruption made him fatigued at work resulting in difficulty with concentration and focus on work assignments. According to the Veteran, his work performance was also affected by him spending too much time in the bathroom due to his IBS symptoms of diarrhea. He even indicated that he sometimes had bowel movements 30 times per day or worse when he felt overwhelmed. Finally, the Veteran described how his right knee problems affected his ability to work, as his symptoms interfered with his walking, bending, and standing for more than 30 minutes. He said that his problems with prolonged standing caused him to take frequent breaks, which affected his ability to complete tasks in a timely manner. Although the Veteran indicated that he was fired from his last job due to layoffs during the pandemic, he also discussed his belief that his firing was due to his work limitations from his service-connected disabilities and that his employer used the pandemic as an excuse. The Board recognizes that that the May 2021 VA examiner opined
even indicated that he sometimes had bowel movements 30 times per day or worse when he felt overwhelmed. Finally, the Veteran described how his right knee problems affected his ability to work, as his symptoms interfered with his walking, bending, and standing for more than 30 minutes. He said that his problems with prolonged standing caused him to take frequent breaks, which affected his ability to complete tasks in a timely manner. Although the Veteran indicated that he was fired from his last job due to layoffs during the pandemic, he also discussed his belief that his firing was due to his work limitations from his service-connected disabilities and that his employer used the pandemic as an excuse. The Board recognizes that that the May 2021 VA examiner opined that with his right knee disability, he could perform sedentary work. However, that conclusion does not address the Veteran's report during his May 2019 VA examination that it hurt to sit and that it took him longer to complete tasks, because he was not able to maintain the same position for long periods of time. Further, the May 2021 VA examiner's opinion only accounts for the Veteran's right knee disability and does not address how the collective impact of his service-connected disabilities, including his PTSD and IBS, would affect his ability to perform sedentary work, especially given his concentration and focus problems due to the effects of these disabilities (i.e., fatigue due to lack of sleep and need to frequently stop working to use bathroom). Given the Veteran's limited education, his work experience and skills working in physically demanding jobs as a mechanic, and his significant functional limitations from his service-connected disabilities, the Board concludes that due to his service-connected disabilities, collectively, he would be unable to obtain and follow all forms of substantially gainful employment. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that from May 1, 2020, the last date of his employment, to May 1, 2021, he warrants entitlement to a TDIU.

In summary, resolving all reasonable doubt in favor of the Veteran, from May 1, 2020 to May 1, 2021, entitlement to a TDIU is warranted. Therefore, the Veteran's TDIU claim from May 1, 2020 to May 1, 2021 must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Journet Shaw, 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.

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