Citation Nr: 18155300 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-47 229 DATE: December 4, 2018 ORDER A total disability rating due to individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran is rendered unable to secure and follow substantially gainful employment due to her service-connected low back degenerative disc disease with bilateral lower extremity radiculopathy, exercise-induced asthma, and chronic right knee disability. CONCLUSION OF LAW The criteria to establish entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1996 to June 1997, and from August 2000 to March 2002. The Veteran has recently perfected an additional appeal for an increased rating for her service-connected right knee disability in September 2018. However, unlike the Veteran’s present appeal for TDIU, in the increased rating claim, the Veteran has expressed her desire for a hearing before a Veterans Law Judge. See VA Form 9, September 2018. As such, the increased rating claim for the right knee is not yet ready for adjudication and another Board decision will be issued as appropriate once the opportunity to participate in the requested hearing has been afforded to the Veteran. The Board also notes that the Veteran’s claim of service connection for depression was granted in a September 2018 rating decision with a 50 percent disability rating effective in July 2018. This grant occurred after the last consideration of the present TDIU claim by the Agency of Original Jurisdiction, thus depression was not previously considered in conjunction with the TDIU claim. The grant of service connection for depression is a favorable finding toward the Veteran and as such, can be considered by the Board relative to her TDIU claim. However, as explained below, the evidence reflects that the Veteran met the criteria for TDIU eligibility based on her physical pain symptoms and functional impairments from service-connected disabilities prior to the most recent grant of service connection for depression; thus, the effective date of her TDIU rating is not dependent on the later award of service connection. For the sake of clarity in assigning the effective date of the TDIU award that will be established, the impact of the Veteran’s psychological symptoms on her ability to secure and follow substantially gainful employment is not discussed further here as it provides no greater benefit to the Veteran in regard to establishing her entitlement to TDIU and could instead necessitate a later effective date for the assignment of a TDIU rating. TDIU A total rating based on individual unemployability may be granted where a Veteran is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a) (2017). As here, where there are two or more service-connected disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran’s currently service-connected disabilities include depressive disorder evaluated as 50 percent disabling, chronic low back strain and degenerative disc disease (40 percent), exercise-induced asthma (30 percent), chronic right knee strain (10 percent), bilateral tinnitus (10 percent), right lower extremity radiculopathy (10 percent) and left lower extremity radiculopathy (10 percent). These disabilities combine for an overall 90 percent disability rating for compensation. The 40 percent rating for the Veteran’s low back disability has been in effect since prior to the present claim, and she has had sufficient additional disability to bring her combined disability rating to 70 percent since the March 2014 date that this claim for TDIU was filed, based upon additional ratings effective in March 2014 for asthma and bilateral lower extremity radiculopathy. As such, the minimum threshold percentage criteria for schedular TDIU are met throughout the present appeal based on the Veteran’s low back, asthma, right knee, and bilateral radiculopathy disabilities. 38 C.F.R. § 4.16(a). An August 2014 VA opinion determined that the Veteran’s service-connected low back disability would preclude her employment in occupations requiring strenuous physical labor, repetitive lifting and heavy carrying, and her service-connected right knee disability would prevent occupations with prolonged kneeling, squatting, climbing, or walking, but that employment in occupations requiring less physical exertion would remain feasible. In a March 2017 VA examination, the Veteran stated that she could not do strenuous house work and had problems bending, kneeling and standing. During a flare-up of her back disability, she reported being unable to walk at times, and her service-connected right knee gives out as well. The examiner opined that the Veteran was impacted in her ability to work by her thoracolumbar spine disability due to limitations with repetitive bending, sitting or standing for long periods of time, walking long distances, and the amount of weight she could lift and carry. In an August 2018 VA examination, the Veteran stated that due to her physical pain she “can’t be the mother I want to be” and can’t keep a job. She also reported that her pain symptoms keep her from playing with her children. (Continued on the next page)   A private vocational assessment also submitted in August 2018 found the Veteran’s service-connected spine, knee, lower leg, and respiratory disabilities prevented her from securing and maintaining substantially gainful employment on a regular and consistent basis, at least that equivalent to a full-time 40-hour week, since she last left employment in 2007. The opining disability analyst found the Veteran’s chronic pain and physical limitations would be expected to produce disturbances in concentration and completion of tasks, frequent unscheduled breaks or absences, as well as unacceptable levels of prolonged absenteeism from a place of employment, as well as an inability to physically perform the required job tasks of her prior occupation as a substitute teacher. Considering the body of evidence as a whole, the Board finds the weight of the evidence is in favor of the Veteran being unable to secure and follow substantially gainful employment due to her service-connected disabilities throughout the present appeal. 38 C.F.R. § 4.16. The claim for TDIU is granted. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald