Citation Nr: 18152444 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-22 224 DATE: November 21, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran is unable to obtain and maintain substantially gainful employment as a result of his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A review of the record reflects that the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case as to the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability in March 2017, and the Veteran filed a VA Form 9, Appeal to the Board of Veterans’ Appeals, in response April 2017. However, this matter has not been certified to the Board and the Board declines to accept jurisdiction at this time, since the AOJ may have not yet completed all intended action concerning the matter. Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.160. A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). In determining whether a veteran is indeed unemployable, consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for a lower back disability rated as 60 percent disabling. Therefore, he meets the schedular criteria for entitlement to a TDIU. The evidence indicates that the Veteran is a high school graduate and last worked for the postal service in 1986, but stopped working due to his physical impairments. His personnel records reflect that he worked as a fuel electric repairman during his service, and he indicated in his September 2010 application for a TDIU that he received training as a diesel technician, electronic technician, and computer repairman between 1979 and 1985. In a June 2011 VA examination, the examiner indicated that the Veteran’s lower back disability was moderate to severe and noted that he experienced constant pain, stiffness, and weakness. The examiner further indicated that the Veteran could only walk for a few minutes at a time and required an ambulatory aid for balance and walking. The examiner concluded that his back disability resulted in functional impairment and that he was limited with respect to his employment capabilities. However, the examiner did not indicate that the Veteran was completely precluded from occupational activity. In a private medical opinion dated January 2017, the examiner concluded that it was as likely as not that the combination of pain and limitations caused by the Veteran’s disability prevented him from being able to work full-time at any exertional level. The private physician indicated that while the June 2011 examiner noted many of the Veteran’s symptoms and associated functional loss, the examiner failed to take factors such as his adverse reaction to prescribed treatment, distraction caused by pain, and the effect of prolonged activities such as sitting. The Veteran stated that he was unable to sit for more than 10 to 15 minutes without standing up or lying down to relieve pain and stiffness in his back and legs, and indicated that he could not bend or stoop or consistently lift objects over 10 pounds. The physician noted that the Veteran was required to use a walker with a built-in seat after experiencing several instances of falling due to weakness. The physician stated the he would be unable to stand or walk for more than one hour in an eight-hour workday and would require frequent unscheduled breaks to lay down, stretch, or switch positions due to pain. The physician indicated that due to his consistent pain and prescription medications to treat his symptoms, the Veteran often experienced difficulty concentrating and considerable drowsiness, prompting two to three naps per day in excess of an hour at a time. The Veteran indicated that constantly being in pain and feeling tired caused him to become very irritable and he had difficulty in getting along with and relating to others. Based upon the totality of the Veteran’s symptoms and medicinal side-effects, the examiner opined that he was completely prevented from being able to perform any type of work. In a private vocational rehabilitation evaluation, the evaluator noted both the June 2011 VA examination and January 2017 private medical opinion. The evaluator indicated that studies found most employers would not tolerate the level of variable rates of absence, including unscheduled breaks and tardiness, which would likely result from the Veteran’s lower back disability. The evaluator noted that his symptoms impacted his ability to do physical labor and to concentrate on tasks. Based upon the severity of the Veteran’s symptoms, the evaluator indicated that he was totally and permanently precluded from performing work at a substantially gainful level throughout the period on appeal. The Board notes that the Veteran has generally reported throughout the period on appeal that he was unable to work due to his lower back disability. Further, the record indicates that his symptoms related to his lower back disability are moderate to severe, and that he also experiences side-effects related to his prescription medication taken to treat his disability. His educational and work-related experience are limited primarily to tasks involving some level of manual labor and both VA and private opinions indicated that he was unable to work in such a capacity. While the June 2011 VA examiner concluded that the Veteran was not entirely precluded from working in other occupations, the Board finds that the January 2017 private medical opinion more thoroughly discusses the extent and impact of the Veteran’s symptoms, and is accordingly more probative. Further, the January 2017 private opinion finding that the Veteran is unemployable is additionally supported by the January 2017 private vocational rehabilitation evaluation. Therefore, the Board finds that in light of his educational and occupational history, the Veteran’s symptoms associated with his service-   connected disability preclude him from obtaining and maintaining substantially gainful employment, and entitlement to a TDIU is warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel