Citation Nr: 18144025 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-19 715 DATE: October 23, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s combined disability rating is 70 percent with one disability rated at least 40 percent, and his service-connected disabilities prevent him from following or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from December 1986 to December 1989, and from September 1990 until April 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal was certified to the Board by the RO in Winston-Salem, North Carolina. 1. Individual Unemployability The Veteran asserts he is unemployable secondary to service-connected disabilities. See January 2014 TDIU application. 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(b) (2018). A TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran’s combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). First, the Veteran has met the schedular requirements for assigment of a TDIU. For the period on appeal, service connection is in effect for lumbar spine degenerative disc disease, a right shoulder disorder, left lower extremity radiculopathy, tinnitus, and bilateral hearing loss. Lumbar spine degenerative disc disease is evaluated as 40 percent disabling, and the Veteran’s combined disability rating is 70 percent. Thus, the schedular requirements for a TDIU are met for the entire period on appeal. Second, the Veteran has been unemployed throughout the appeal period. The Veteran reports that his education consisted of high school and basic law enforcement training, and that he last worked for the Transportation Security Administration in April 2008. See January 2014 TDIU application. The record shows that the Veteran also previously worked as a corrections officer and at an airborne school. See December 2008 private neurology record. Third, the evidence also shows that for the entire period on appeal, the Veteran has been unable to follow or maintain substantially gainful employment due to his service-connected disabilities. Notably, of record are two private medical opinions supporting the Veteran’s claim, and the Veteran’s credible report of functional limitations. In a September 2015 letter, the Veteran’s treating chiropractor stated that the Veteran was unable to perform necessary occupational duties due to his lumbar spine condition with radiculopathy. Dr. SK wrote that the Veteran was hindered physically due to pain and failed surgical intervention, and had difficulty focusing due to the heavy narcotics he took for pain management. The Board finds the opinion of the Veteran’s treating chiropractor probative in light of Dr. SK’s familiarity with the Veteran’s medical history and functional capabilities. In a June 2016 statement, the Veteran wrote that he had constant ringing of the ears that caused significant distraction and impaired his ability to hear what others were saying. Due to his right shoulder, he was not able to fully raise his arm. Regarding the back, he reported that he had significant pain he rated at an 8 on a pain scale of 1 to 8. As a result, he was unable to stand, sit, or walk for long periods. He then described significant balance problems related to his left leg radiculopathy, and that he took 2 types of narcotic pain medication. The Veteran is competent to report his symptoms and the Board finds him credible as his reports are consistent with other objective evidence of record. In June 2016, VA received a private vocational assessment. CP reviewed the Veteran’s treatment records, and prior work history and conducted an interview with the Veteran. Ultimately, CP opined that the Veteran was unable to secure or follow gainful employment, even at the sedentary level due to service-connected disabilities. She explained that although the Veteran was capable of lifting up to 10 pounds, he was unable to complete the demands of prolonged sitting required for sedentary work. He also had problems with focus, attention, and concentration due to chronic, high pain levels. Further, the amount of time the Veteran would need to take off work due to his service-connected disabilities would not be tolerated in a competitive work environment. Overall, the preponderance of the evidence establishes the Veteran is unable to follow or maintain substantially gainful employment due to his service-connected disabilities, and due to the effects of the medication prescribed to treat them. Although in August 2009 a Social Security Administration examiner found the Veteran remained capable of light to medium work, the examiner did not consider the effects of the Veteran’s medication. This opinion is thus not afforded any significant probative value. In addition, the Board places significant probative weight on the 2015 and 2016 positive opinions as they considered the Veteran’s service-connected disabilities and medications take for those disabilities and provided a more thorough supporting explanation. Accordingly, the most probative evidence of record demonstrates that entitlement to a TDIU is warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel