Citation Nr: 1804096 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 16-29 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1954 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veteran's Contentions The Veteran asserts that his service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment. See August 2014 Veterans Application for Increased Compensation Based on Unemployability and June 2016 Veteran Statement in Support of Claim. II. Applicable Law A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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 disabilities to bring the combined rating to 70 percent or more. 38 C.F.R §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See id. III. Analysis The Veteran is service-connected for the following disabilities: cervical radiculopathy of the right upper extremity, rated as 40 percent disabling from August 15, 2014; right ulnar neuropathy and cervical radiculopathy rated as 10 percent disabling from September 30, 2008, 30 percent disabling from September 5, 2012, and 40 percent disabling from August 15, 2014; degenerative disc disease and degenerative joint disease of the cervical spine rated as 10 percent disabling from April 19, 2000, 20 percent disabling from December 31, 2009, and 30 percent disabling from August 5, 2013;right shoulder degenerative joint disease and shoulder impingement syndrome rated as noncompensably disabling from May 20, 1999, and 20 percent disabling from December 27, 2005; degenerative joint disease, thoracic spine, rated as 10 percent disabling from May 20, 1999, and 20 percent disabling from May 17, 2007; scar, status post laceration above right eyebrow rated as noncompensably disabling from April 19, 2000; scar, status post repair right shoulder rotator cuff tear rated as noncompensably disabling from September 7, 2010; and residual fusion scar rated as noncompensably disabling from August 5, 2013. His combined disability rating is 70 percent since August 5, 2013, and considering his cervical spine disability and neurological symptomatology as "one" disability rated at 40 percent disabling, the schedular criteria for a TDIU are met from that time. See 38 C.F.R. § 4.16(a)(2). The Veteran has a high school diploma with prior employment in manual labor, utility testing, and as a supervisor. His last known full-time employment was in 1998 as a supervisor in utilities for the City of Wilcox, and he has competently and credibly reported that this position involved some manual labor. See October 2017 Board Hearing Transcript at 3-4; August 2014 VA Form 21-8940. The December 2014 and June 2017 VA examiners found that the Veteran was precluded from lifting more than 30 pounds, climbing stairs or ladders, bending, walking for prolonged periods of time, driving long distances, gripping tools in his right hand for prolonged periods, extending his neck for prolonged periods, or reaching overhead, due to his service-connected back, neck, right arm, and right shoulder disabilities. See December 2014 and June 2017 VA examination reports. Thus, physical employment is precluded due to the Veteran's service-connected disabilities, and as noted above, the entirety of the Veteran's work history involved some degree of manual labor. Moreover, the Veteran competently and credibly testified at his October 2017 Board hearing that he is unable to sit for prolonged periods of time due to his service-connected disabilities, and has difficulty using his right hand for routine tasks associated with sedentary employment such as typing due to loss of sensation from his service-connected ulnar neuropathy. See October 2017 Board Hearing Transcript at 12, 14-15. In this regard, the Board acknowledges the December 2014 VA examiner's statements that sedentary employment is feasible for the Veteran and the June 2017 VA examiner's finding that service-connected disabilities do not interfere with sitting. However, given the Veteran's competent and credible reports as noted above, the Board affords the Veteran the benefit of the doubt on this matter, and finds that sedentary employment is also precluded due to the Veteran's service-connected disabilities. Thus, a TDIU is established. 38 U.S.C. §§ 1155, 5107; 38 C.F.R §§ 3.340, 3.341, 4.16(a). ORDER Entitlement to a TDIU is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs