Citation Nr: 18143268 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-48 333 DATE: October 18, 2018 ORDER Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to December 1974. The Veteran testified at a July 2018 video hearing before the undersigned. A transcript of the hearing is of record. 1. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “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”. See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. In this case, the Veteran meets the threshold requirements for TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for degenerative disc disease at L2-3, L3-4, L4-5, with severe spinal stenosis and right leg radicular symptoms, rated as 60 percent disabling. Accordingly, the remaining question is whether he is unable to secure or follow a substantially gainful occupation because of his service-connected disability. The Veteran contends he cannot work due to his service-connected disability. A review of the record reveals evidence for and against his claim. In May 2011, VA received a letter from Dr. C.N. that stated the Veteran has severe low back pain and is unable to work. Dr. C.N. also stated the Veteran is under the clinician’s care for his medical problems, but did not state whether these medical problems were taken together when opining the Veteran could not work. However, a May 2011 treatment record makes clear Dr. C.N.’s opinion is that the Veteran cannot work due to back pain. This opinion is repeated by Dr. C.N. over several years of treatment records. See, e.g., August 2014 and August 2015 treatment notes of Dr. C.N. VA examiners, in May 2012 and May 2014, found the Veteran’s spinal stenosis and associated neuropathy have an impact on his ability to work, including his ability to stand or walk for prolonged periods and his ability to bend, turn, lift and carry. However, neither examiner noted a limitation in the Veteran’s ability to sit. An April 2018 “Transferable Work Skills Analysis” was provided which notes that because of his service-connected disability, the Veteran “is limited to Sedentary Work”, i.e. work that predominately requires sitting. However, the evaluator also noted the Veteran attended school to about the 7th or 8th grade and has no GED. It was further noted that the Veteran’s prior employment was unskilled and that the Veteran “has no technical skills, does not know how to operate a computer or use office productivity software.” Given the Veteran’s limitation to sedentary work, limited education and lack of skills, the evaluator opined the Veteran “does not possess the necessary job skills to obtain any work that exists in substantial numbers in the national or local economy.” During the Veteran’s hearing, his representative noted the Veteran’s 60 percent rating was granted due to at least six weeks of incapacitating episodes in a twelve-month period. The Veteran confirmed he was still being told to get bed rest by VA clinicians at Lake City VAMC. A review of the record does not reveal prescribed bed rest in the years leading up to his hearing. To the contrary, the May 2012 VA examiner noted a lack of incapacitating episodes over the prior twelve months. However, an August 2018 treatment note from Dr. C.N. states, “Recommend use a recliner instead of bed rest due to the high risk of pneumonia. Patient will require routine rest in the recliner for severe spinal stenosis.” The evidence of record contains opinions and evidence for and against the Veteran’s claim. The VA examiners and Dr. C.N. evaluated the Veteran and came to different conclusions about the degree of his limitation on work, but all are deemed credible. However, Dr. C.N. has reiterated the opinion of unemployability over several years and multiple evaluations; therefore, the Board affords more weight to Dr. C.N.’s opinion than that of the VA examiners. Additionally, when considering the Veteran’s limited education and prior work history, the weight of evidence further supports the Veteran’s claim.   The Board has considered the credible statements of the Veteran in regard to his employability, his treatment records and VA examination reports. In light of these statements, records and reports, the Board finds that the Veteran is and was unable to obtain substantially gainful employment as a result of his service-connected disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel