Citation Nr: 18142065 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-24 850A DATE: October 12, 2018 ORDER A TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT the Veteran’s service-connected disabilities are of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating are met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1972 to July 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). Of note, the appeal on the issues of increased ratings for service-connected residuals of fracture of the cervical spine, and radiculopathy of the left and right upper extremities associated with the fracture of the cervical spine has not been perfected to the Board. The Board acknowledges that these three issues were listed on the supplemental statement of the case (SSOC) in October 2017, but the letter accompanying the document clearly noted that to convey jurisdiction on the Board, a substantive appeal needed to be filed. This was not done, and, therefore, the Board does not have the jurisdiction on these issues and they will not be discussed in this decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302. TDIU A Total Disability Individual Unemployability (TDIU) may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 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 disability or more. 38 C.F.R. § 4.16(a). The Veteran is seeking service connection for TDIU. He is service connected for residuals of fracture of the cervical spine (rated at 30 percent), radiculopathy of the right upper extremity (rated at 40 percent), radiculopathy of the left upper extremity (rated at 30 percent), tinnitus (rated at 10 percent), and bilateral hearing loss (noncompensable rating). His combined rating is 80 percent. The Veteran’s service-connected disabilities combined for at least a 70 percent rating with at least one disability rated at 40 percent or more beginning April 18, 2013. As such, he meets the schedular rating criteria for a TDIU. The question then becomes whether the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities. In June 2013, a VA examiner indicated that the impact of the cervical spine condition on the Veteran’s ability to work was that he has difficulty turning his neck for looking upwards and downwards and from looking from side to side when driving. In October 2017, a VA examiner ( neck condition) indicated that the impact of cervical spine condition on the Veteran’s ability to work was pain and limited range of motion and a VA exam ( arms condition) indicated that the Veteran’s peripheral neuropathy condition in his upper extremities did not impact his ability to work. On the Veteran’s claim (VA Form 21-8940) received in August 2017, he indicated that he was self-employed as a building contractor during 2004 to 2009 and that he had four years of high school education. In a statement in September 2017, the Veteran indicated that he had to cease his construction work due to his service-connected disabilities and that he had not been able to work for the past 12 months. In a March 2018 medical opinion, Dr. H.S. indicated that the combination of pain and limitations caused by Veteran’s service-connected disabilities prevented him from being able to work and that the Veteran had issues with bilateral manual dexterity which limit the bulk of unskilled sedentary jobs. In March 2018, a vocational expert Dr. S.B. reported that the Veteran was precluded from performing work at a substantial gainful level due to his service-connected disabilities. According to the expert, due to the limitation of his hand use, the Veteran was unable to perform his prior work as a construction worker. He was further restricted from sustaining any other work as his limitations in neck motion, upper extremities use and pain behavior which would prevent him from doing even sedentary unskilled work. He would be unable to retain reliable and productive in any competitive work setting. The Board acknowledges that the VA examinations tend to suggest that the Veteran is capable of a limited range of work. However, Dr. H.S. and Dr. S.B opined that the Veteran would be unable to sustain substantial gainful employment due to his service connected disabilities, and provided rationales for their opinions that are sufficient for the Board to conclude that it is at least as likely as not (50 percent or greater) that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities alone. Accordingly, the Veteran’s claim for TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Qun Wang, Associate Counsel