Citation Nr: 18154448 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-53 795 DATE: November 29, 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 service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW A TDIU is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran in an October 2016 Form 9, indicated that he did not want a Board hearing. However, in a November 2016 dated Form 9, he indicated that he wanted a live videoconference hearing at a local VA office. Because the Board is herein granting the benefit sought, there is no prejudice to the Veteran by not clarifying the hearing request. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2018). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more. 38 C.F.R. § 4.16 (a) (2018). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Veteran contends that his service-connected disabilities render him unable to secure or follow substantially gainful employment. The Veteran is service-connected for PTSD; residuals, fragment wound anterior and lateral thigh; right peroneal nerve injury; fragment posterior right arm; fragment wound, medial posterior lower right leg and right ankle; residual, fragment wound, lateral right upper thigh; residual, fragment section right thigh; fragment, medical posterior, left upper thigh muscle group XVIII; scar, right ankle; fragment, wound left Achilles tendon; residual, scar, right buttock; fragment wound, lumbar area, medial posterior right thigh; and left inguinal hernia. The Veteran’s combined total rating on February 12, 2015, the date of his claim, was of 90 percent. The threshold outlined in 38 C.F.R. § 4.16 (a), was, therefore, met. The Board, however, notes that as of December 6, 2016, the Veteran’s total combined disability rating was 100 percent, therefore rendering a TDIU moot on said date and after. In the Veteran’s Application for Increased Compensation, the Veteran indicated that his injuries from Vietnam prohibit him from securing or following substantially gainful employment. He also indicated that his last occupation was as a bus driver in 1971-1972 and he has not tried to obtain employment since then. He has a high school education and has not had any training or other education since becoming too disabled to work. During VA examinations in July 2015, the examiner noted that that the Veteran has not worked since 1970. Nonetheless, regarding his ability to work, he opined that the Veteran’s scars would bear no impact on sedentary or physical employment. In addressing the impact of the Veteran’s service-connected hernia repair on his employment, the examiner concluded that there would be no impact on sedentary employment. However, there would be a mild impact on physical employment due to his reported pain with frequent bending. The examiner also discussed the impact of the Veteran’s muscle injuries on his ability to work. The examiner concluded that the Veteran’s fragment wounds would have no impact on sedentary employment, but a moderate to severe impact on physical employment, due to the Veteran’s weakness, fatigue, pain, and loss of strength in the extremities. Regarding whether the peripheral nerve condition and/or peripheral neuropathy would impact the Veteran’s ability to work, the examiner concluded that there would be no impact on sedentary employment related to the nerve damage to the right lower extremity. However, there would be a moderate to severe impact on physical employment due to weakness, fatigue, pain, and loss of strength in the extremities. Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Although the July 2015 VA examiner found that the Veteran’s peripheral nerves, scar, and hernia disabilities would have no impact on sedimentary employment, he did not address what constitutes sedimentary employment. The Board notes that per Dorland’s Illustrated Medical Dictionary, 1687 (32nd ed. 2012), “sedentary” is defined as “sitting habitually; of inactive habits;” “Pertaining to a sitting posture.” The Court has recently held that because VA does not define “sedentary employment” in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). The examiner also found that the Veteran’s peripheral nerves and hernia disabilities would have a moderate to severe impact on physical employment. Nonetheless, he failed to consider the Veteran’s educational and occupational background. The record shows that the Veteran has a high school education and was last employed in 1972 as a bus driver. He has had no additional training after his last employment. Based on the evidence above, the Board finds that all the Veteran’s service-connected disabilities (as listed above) when taken together, preclude him from securing or following any substantially gainful employment, physical or otherwise. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Reviewing the totality of the evidence, however, including the Veteran’s current medical findings detailing the severity of his service-connected disabilities, the competent and credible lay assertions of unemployability due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that the Veteran’s service-connected disabilities, coupled with his educational/training background and employment history, likely precludes him from securing and following any substantially gainful employment. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to TDIU is warranted, before December 6, 2016. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel