Citation Nr: 1806105 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-08 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating on the basis of individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active military service with the United States Navy from November 1951 to April 1954. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee. In May 2017, the Veteran withdrew his personal hearing request. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected disabilities preclude substantially gainful employment at all times during the pendency of the appeal. CONCLUSION OF LAW The criteria for a TDIU rating have been met at all times during the pendency of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts, in substance, that his service-connected disabilities prevent substantial employment. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service connected orthopedic disorders. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000). The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board finds that the Veteran's service-connected low back disability as well as his right and left lower extremity radiculopathy is disabilities that come from a common etiology. See 38 C.F.R. § 4.16(a)(2). Therefore, the Board finds that his disabilities meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) at all times during the pendency of the appeal. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). On his October 2007 and/or June 2014 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the appellant reported that he last worked full-time and he became too disabled to work in June 1985. As to his employment history, he notified VA that before taking an early retirement in in June 1985 he had worked for over 32 years for the State of Tennessee in their material and test division for the State's highway division. He also notified VA that his job entailed highway testing and design, rock paving, concrete, scales, soil drilling, equipment maintenance, truck driving, and plans reading. He also reported that his job included both training and supervised others. As to his education and training, he reported that he had two years of college. In other writings to VA, the Veteran reported that his low back problems prevented him from standing and walking for more than a few minutes. See, e.g., statements in support of claim dated in May 2017. Significantly, the Veteran's work history for the State of Tennessee in its' highway's division material and test department entailed highway testing and design, rock paving, concrete, scales, soil drilling, equipment maintenance, and truck driving that are fields that require him being able to be physically active. However, the Board finds that a review of the record on appeal shows that his service-connected low back disability and bilateral lower extremity radiculopathy adversely impacts his ability to be work in an occupation that requires him to be physically active because he can neither stand nor walk for prolonged periods of time. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that 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 a medical question and that it is an adjudicative determination properly made by the Board or the RO). In this regard, the Board also notes that the April 2014 VA examiner specifically opined that the Veteran's service connected low back disability caused him to be ". . . unable to perform duties requiring standing, walking, bending, stooping, or lifting or repetitive use of upper or lower extremities. His back limits him from performing active employment . . ." Likewise, the Veteran's work history with the State of Tennessee in its' highway's division material and test department as a truck driver, plans reader, trainer, and supervisor requires being able to sit for a long period of time. However, the Board finds that the record shows that his service-connected low back disability and bilateral lower extremity radiculopathy adversely impacts his ability to sit for long periods of time. See Geib. Given the above the Board finds the most probative evidence of record shows that his service-connected disabilities would prevent him from securing or following a "substantially gainful" occupation given his work history and the collective impact his low back disability and bilateral lower extremity radiculopathy would have on performing jobs that require manual labor, performing jobs that require prolonged sitting, performing jobs that require effectively interact with co-workers and others in a sedentary work setting. Lastly, the Board finds that the collective adverse impact of the Veteran's service-connected disabilities cause with working and his lack of experience would also prevent him from securing or following a "substantially gainful" occupation in a sedentary work setting despite the April 2014 VA examiner's statement that "[h]e is capable of and limited to sedimentary employment by his back condition." Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. The Board therefore finds that the criteria for a TDIU have been met. Moreover, because the collective adverse impact of the Veteran's service-connected disabilities have on employment was substantially the same, the Board finds that he met the criteria for a TDIU at all times during the pendency of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). ORDER Subject to the law and regulations governing the payment of monetary benefits, TDIU benefits are granted all times during the pendency of the appeal. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs