Citation Nr: 1803371 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-14 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Gentile, Associate Counsel INTRODUCTION The Veteran had active military service from January 1963 until January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. Jurisdiction over the case was subsequently transferred to the VA RO in Philadelphia, Pennsylvania. This case was previously before the Board in October 2015, at which time the issue on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's combined rating has been at least 70 percent with a single disability rated 40 percent. 2. For the entire period on appeal, the Veteran has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that he is unable to work because of an inability to perform his job duties as a result of symptoms of his service-connected disabilities. The Veteran's service-connected disabilities include lumbosacral strain, rated 40 percent; mood disorder with depressive features, rated 30 percent; lumbar radiculopathy of the right lower extremity, rated 10 percent; and lumbar radiculopathy of the left lower extremity, rated 10 percent. The combined disability rating is 70 percent. Therefore, the scheduler criteria for assignment of a TDIU are met. 38 C.F.R. § 4.16 (a). The Veteran reported that he was unable to work as a result of his service-connected disabilities. He reported that he retired from his job three years earlier than planned because of the physical stress of his job. A review of the record shows that the Veteran las worked in September 2011, at which time his disabilities prevented him from continuing employment. The Veteran worked for over 20 years as a traffic manager and he has a high school education. At a December 2011 VA examination for mental disorders, the Veteran reported leaving his job earlier than planned as a result of his service-connected disabilities. The examiner noted that the Veteran experienced depressed mood and anxiety, but noted that the Veteran's symptoms were mild and did not impact his ability to work. Instead, the examiner was of the opinion that the Veteran's physical limitations were what prevented him from working. At a December 2011 VA examination for spine disabilities, the Veteran was diagnosed with degenerative disk disease (DDD) and degenerative joint disease (DJD) of the lumbar spine. The Veteran reported that he experienced back pain that radiated into his lower extremities that occurred daily and was made worse by prolonged standing. He reported that he experienced painful flare-ups that caused a total inability to walk. The Veteran reported that he was only able to stand for 5 minutes at a time and could only walk one block, or a total of 10 minutes, at a time as a result of his back disability and associated radiculopathy. On physical examination, the Veteran was noted to have limitation of motion that was even further limited buy pain. The Veteran's functional impairment was noted to be additionally limited after repetition and he was noted to have localized tenderness to palpation in the lumbar area. The Veteran experienced guarding and muscle spasm of the back and an antalgic gait. The Veteran was noted to use a cane to assist with ambulation. The examiner opined that the Veteran would not be able to perform heavy physical labor; or tasks requiring heavy lifting, frequent bending, frequent twisting, or frequent turning. The examiner noted that the Veteran would only be able to perform light duty or desk work. At a February 2016 VA examination for spine disabilities, it was noted that the Veteran's back disability had caused increased pain that was constant and severe. The pain was noted to be aching in nature and the Veteran reported that his pain was worse during cold weather. The examiner noted the Veteran experienced abnormal range of motion and functional loss that caused him to be unable to bend over. The Veteran's ability to function is limited by pain. The Veteran was noted to experience pain on weight bearing and on palpitation of the thoracolumbar spine. In regards to occupational impact, the examiner noted that the Veteran experienced pain with prolonged walking and standing in that the Veteran could only walk one block, or for 10-15 minutes at a time without pain. The examiner noted that the Veteran would not be able to perform heavy labor, lifting, or repetitive bending. The examiner noted that the Veteran "may" be able to perform sedentary work, or desk work, with breaks for change in position. Based on the subjective reports of the Veteran and the objective findings in the various VA examination reports, the Board finds that the Veteran's disabilities significantly impact his ability to function in an occupational setting. They result in constant pain, significantly limit his ability to stand and walk, and significantly limit his ability to perform any sort of even mildly strenuous activity. The Board acknowledges the February 2016 VA examiner's finding that the Veteran "may" be able to perform sedentary employment, but finds that to be speculative at best. There is no indication from the record that the Veteran would be qualified for any sort of sedentary employment based on his education and occupational history. Further, the examiner noted that the Veteran would still require frequent breaks for shift in movement even if he were able to obtain sedentary employment. In light of the Veteran's occupational background and the functional limitations described, the Board finds that he is unable to obtain and maintain substantially gainful employment in accordance with his industrial background and education level as a result of his various service-connected disabilities. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted. ____________________________________________ Kristen Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs