Citation Nr: 18143228 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-03 993 DATE: October 18, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW Entitlement to a TDIU is granted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to March 1980. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. A Veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). VA may consider the level of education, special training, and previous work experience in making this determination, but may not consider the Veteran’s age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disorder on the Veteran’s occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the question of whether the Veteran’s service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board’s determination to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16(a) as support for the conclusion that the applicable statutory and regulatory provisions “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching an ultimate conclusion regarding his employability. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 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, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran filed a claim for a TDIU in December 2014. At the time of the Veteran’s TDIU application, the Veteran was service-connected for degenerative joint disease of the thoracolumbar spine, rated as 20 percent disabling; left knee sprain, rated as 20 percent disabling; right lower extremity radiculopathy, rated as 20 percent disabling; left lower extremity radiculopathy and peripheral neuropathy, rated as 20 percent disabling; left lower extremity femoral radiculopathy, rated as 20 percent disabling; degenerative joint disease of the left knee, rated as 10 percent disabling; right varicocele, rated as 10 percent disabling; right knee instability, rated as 10 percent disabling; left knee limitation of flexion, rated as 10 percent disabling; and right lower extremity femoral radiculopathy, rated as 10 percent disabling. The Veteran’s combined service-connected disability rating is 90 percent. Therefore, the Veteran meets the threshold requirements for TDIU, as set forth in 38 C.F.R. § 4.16(a). In his December 2014 TDIU application, the Veteran stated that he owned his own company and worked as a repair technician from May 2004 through December 2014. The application indicates that he still owns the company, but became too disabled to work in December 2014. The Veteran indicated that he has had technical training in appliance repair in 1975, and has not had any education or training since he became too disabled to work. The Veteran stated that his back disability, left leg disability, and insomnia prevent him from working. The Veteran clarified in his September 2015 Notice of Disagreement that the chronic pain from his service-connected disabilities causes chronic loss of sleep and fatigue, which prevents him from working. He further clarified that although he indicated he was employed as a technician repairman, this was his profession for the last 25 years, but as of December 2014, he was incapable of standing, bending, walking, kneeling, sitting, lying down, or turning at the waist without chronic pain. He further stated he is no longer capable of lifting heavy objects and has trouble breathing at times due to pain spasms. Various medical examinations have touched on the Veteran’s employability. During a March 2012 VA examination, the examiner noted that the Veteran’s back disability impacts his ability to execute skilled movements smoothly and noted weakened movement, excess fatigability, incoordination, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The VA examiner stated that the Veteran’s back condition impacts his ability to work, as he can only stand or sit for 30 minutes, needed to keep shifting positions, had pain while walking, and needed frequent breaks during the day which prolonged his completion of tasks and prolonged his workday. The examiner also noted that his service connected knee and lower leg disabilities also impact his ability to work in that it makes it harder for him to stand or sit, bend or crouch and has prolonged pain when sitting or standing for any period of time. During another VA examination in February 2015, the examiner noted that the Veteran’s back condition impacted his ability to work due to pain and decreased range of motion, especially when sitting or standing for any length of time. The examiner also noted that his knee and leg disabilities also affect his ability to work as he cannot walk or stand for long periods of time due to pain and has to take many breaks during the day. The Veteran additionally underwent a private vocational assessment in September 2016, which noted that the Veteran’s service-connected conditions cause him to be unable to obtain and/or maintain substantially gainful employment as of March 2012. The examiner opined that the Veteran was incapable of sedentary employment due to his functional limitations and based upon his inability to sit for prolonged periods of time and his need for frequent breaks throughout the day. When considering the Veteran’s employment and educational background, as well as the medical evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of a TDIU. When looking at the effects of the Veteran’s service-connected disabilities in the aggregate, and considering the Veteran’s past education and work experience as a repair technician, the Board finds the Veteran is not capable of obtaining and maintaining substantially gainful employment consistent with his education and experience. The Board is the ultimate arbitrator on whether or not the Veteran is entitled to TDIU, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As such, the Board concludes that TDIU is warranted under 38 C.F.R. § 4.16(a). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Kerner, Associate Counsel