Citation Nr: 1758025 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-10 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1983 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The December 2009 rating decision, in pertinent part, denied entitlement to individual unemployability. Jurisdiction over the case was subsequently transferred to the RO in San Juan, the Commonwealth of Puerto Rico. This case was previously before the Board in December 2015 and remanded for further development. The Board notes that The American Legion was the Veteran's authorized representative for this appeal, however during the appeal period, the Veteran provided correspondence revoking the The American Legion as his authorized representation. He wishes to proceed pro se. FINDING OF FACT The Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. CONCLUSION OF LAW The criteria for the grant of TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks total disability based on individual unemployability. He contends that his debilitating service-connected conditions prevent him from maintaining gainful employment. See May 2014 statement from the Veteran. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). His service-connected disabilities consist of lumbar myositis with painful motion, rated 60 percent disabling; cervical and upper back myositis, rated 30 percent disabling; irritable bowel syndrome, rated 30 percent disabling; left and right C8-T1 radiculopathy, each rated 20 percent disabling; a left varicocelectomy scar, allergic rhinitis, and left and right L5-S1 radiculopathy, each rated 10 percent disabling; and noncompensable renal lithiasis. His combined rating is 90 percent, effective June 30, 2009. The Veteran last worked in February 2009. He was employed as a mail handler from November 1995 to February 2009. He was granted Social Security disability benefits in 2009 for disabilities inclusive of his service-connected lumbar spine disability. Throughout the appeal period, the Veteran has consistently maintained that he experiences pain and limitations of motion due to his service connected disabilities. He also states that he is not able to sit or stand for long periods of time. He further asserts, "I can't lift anything heavy, bend, squat, or crawl" and "I have continuous pain even when sitting." See November 2013 statement from the Veteran. The Veteran appeared for seven VA examinations in March 2016. The exams were scheduled to assess the severity of the Veteran's varying service-connected disabilities. Each examiner provided an opinion in reference to the Veteran's ability to work, as affected by the respective disability being examined. No examiner offered an opinion addressing the cumulative effect that all service-connected disabilities have on the Veteran's ability to work. Upon review of the VA examiner's opinions, the Board finds that although any one disability may not cause the Veteran to be unemployable, the restrictions required to obtain gainful work (as articulated by the VA examiners) demonstrate that indeed, when looked at as a collective whole, the Veteran's service-connected disabilities would at least as likely as not preclude the Veteran from securing or following gainful employment. Pertinently, the VA examiners noted that the Veteran's work restrictions would include limiting him to semi-sedentary duty, without being in a prolonged standing position, and no prolonged walking or climbing stairs, no repetitive bending of the spine, no pulling or pushing , and no heavy lifting. Other restrictions included limitation to an indoor and dust-controlled work place, as well as easy access to bathroom facilities. See March 2016 VA examinations. Overall, the Veteran's prior work history is primarily as a mail carrier that required long periods of standing and bending; he does not have work experience in sedentary employment. Even if he did, he has provided competent and credible lay statements expressing pain when sitting for long periods of time and he also requires easy access to restroom facilities. He has already been awarded SSA disability benefits as of 2009 in large part due to his service-connected back. As such, the Board finds that when assessed as a whole, the evidence favors a finding that the Veteran's disabilities preclude the types of employment for which he would otherwise be qualified, and the accommodations would be very burdensome. TDIU is therefore granted. ORDER Entitlement to TDIU is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs