Citation Nr: 1756676 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 08-34 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to total disability based on individual unemployability prior to February 13, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to August 1974, from September to October 1990, and from November 2003 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the RO in Columbia, South Carolina. In an August 2017 rating decision, the RO granted TDIU effective February 18, 2013. Subsequently, in a September 2017 rating decision, the RO stated clear and unmistakable error existed and established entitlement to TDIU from February 13, 2013. Although the RO granted the Veteran entitlement to TDIU, he continues to seek a TDIU for the entire appeal period stemming from the underlying increased rating claim for a lumbar spine disability with right lower extremity radiculopathy addressed by the Board in its November 2015 decision. This matter is again before the Board for further review. FINDING OF FACT Prior to February 13, 2013, the evidence is at least evenly balanced as to whether the Veteran's service-connected disability precludes him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU prior to February 13, 2013, are met. 38 U.S.C. §§ 1155, 510; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims that he is no longer employed due to his service-connected posttraumatic stress disorder (PTSD), back disorder, right leg radiculopathy, right foot disorder, hearing loss, tinnitus, and sinusitis. See Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated September 2013. 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 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). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Prior to February 13, 2013, the Veteran's PTSD was rated as 50 percent disabling (30 percent prior to October 2010); radiculopathy of the right lower extremity as 10 percent disabling; disc herniation and moderate foraminal stenosis was rated at 40 percent; sinusitis as noncompensable; hallux valgus of the right foot as 10 percent disabling; tinnitus as 10 percent disabling, allergic rhinitis as 10 percent disabling; and bilateral hearing loss as noncompensable His combined rating was 70 percent from January 22, 2009, and 80 percent from October 27, 2010. The Veteran's service-connected disorders met the percentage rating standards for TDIU prior to February 13, 2013. 38 C.F.R. § 4.16(a). The Veteran's educational and occupational experience is limited to an aircraft mechanic. He completed 4 years of college, and was last employed while on active duty with the Air Force. He has been unemployed since April 2006. Most probative in evaluating the Veteran's employability are the numerous VA examinations throughout the record that collectively show the Veteran's service connected disabilities were severe enough to interfere with his ability to obtain and maintain gainful employment. Notably, it has been documented that his sinusitis and lumbar spine disability impacted ability to work, and his hallux valgus of the right foot significantly impacted his ability to work. It was noted his hearing loss and tinnitus impacted his ability to work, and his PTSD was noted to result in decreased work efficiency. A review of the treatment records and records from the Social Security Administration(SSA) show his service connected disabilities were so severe they interfered with his ability to obtain and maintain employment and was deemed disabled by SSA standards as of November 2006. See April 2016 SSA Records. After resolving any doubt in the Veteran's favor, the Board finds that his service-connected disabilities noted above preclude him from obtaining and maintaining substantially gainful impairment consistent with his educational and occupational work experience. Thus, the Board concludes that TDIU prior to February 13, 2013, is warranted. For the above reasons, the evidence reflects that the functional limitations caused by the Veteran's service-connected disabilities preclude gainful employment. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner," and "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Accordingly, entitlement to a TDIU prior to February 13, 2013, is warranted. ORDER Entitlement to a TDIU prior to February 13, 2013, is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs