Citation Nr: 18156391 Decision Date: 12/10/18 Archive Date: 12/07/18 DOCKET NO. 05-25 457 DATE: December 10, 2018 ORDER Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is granted, subject to the rules and regulations governing the payment of VA monetary benefits. FINDING OF FACT The Veteran's service-connected disabilities as likely as not preclude gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1961 to July 1961 and from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2013, the Veteran testified before the undersigned Veterans' Law Judge at a video conference hearing. A transcript of the hearing is of record. This case was last before in January 2017, when it was remanded for additional development. This matter is once again before the Board. During the pendency of the remand, a September 2018 rating decision granted service connection for an anxiety disorder. As that decision constitutes a grant of the claim for service connection, that claim is no longer on appeal. The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning entitlement to service connection for hypertension, hyperlipidemia, arthritis, diverticulitis, and perforated duodenal / jejunal diverticulum; entitlement to earlier effective dates for the grant of service connection for degenerative arthritis of the spine and bilateral lower extremity radiculopathy; and entitlement to increased initial ratings for degenerative arthritis of the spine, bilateral lower extremity radiculopathy, and gastritis; and entitlement to special monthly compensation based on the need for aid and attendance. Such appeals are contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board now may serve to delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and those issues will be the subject of a later Board decision, if ultimately necessary. 1. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2018). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a) (2018). The Veteran is service-connected for an anxiety disorder, rated as 70 percent disabling; degenerative arthritis of the lumbar spine, rated as 20 percent disabling; right and left lower extremity radiculopathy, each rated as 20 percent disabling; and dermatitis and gastritis, each rated as noncompensable, and gastritis, rated as noncompensable. The Veteran’s combined rating has been 70 percent or higher since April 6, 2015. Thus, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) (2018) are met. The Veteran asserts that he is unemployable due to his service-connected disabilities. On his June 2016 VA Form 21-8940, the Veteran reported that he had last worked in 1971 as a manual laborer. He noted that he had a high school diploma and some college, but did not have a college degree. A Social Security Administration (SSA) statement confirms that the Veteran has not engaged in gainful employment since, at least, 1972. An August 2015 thoracolumbar spine examination report noted that the Veteran had chronic flare-ups of back pain, which he mitigated with oxytocin. The Veteran was noted to have limited range of motion, disturbances of locomotion, interference with sitting and standing, and muscle spasms, localized tenderness, and guarding that resulted in abnormal gait or abnormal spinal contour. The examiner noted that the Veteran ambulated with a cane and had been advised to use a walker or wheelchair due to gait abnormalities. The examiner opined that the Veteran’s lumbar spine disability would impact his ability to work, but the examiner did not detail the nature or extent of that impact. In an October 2016 private vocational assessment, the clinician noted that the Veteran had last worked performing manual labor, but had not engaged in substantially gainful employment since 1971. It was further noted that the Veteran had a high school diploma and two years of college, but did not have a college degree. She noted that the Veteran had been granted SSA disability in October 1991 due to his lumbar spine disability. The clinician stated that after reviewing the Veteran’s entire claims file, it was her opinion that the Veteran did not have any acquired work skills that were transferable to skilled or similar skill alternative work activities. She further opined that based on her professional experience, it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment on a regular and consistent basis, even at a sedentary level, due to his service-connected disabilities. In support of that finding, the clinician noted that the Veteran’s service-connected lumbar spine arthritis and bilateral lower extremity radiculopathy resulted in significant physical limitations, including an inability to walk independently, instability with a history of falling, an inability stand for any extended period, and an inability to remain seated for prolonged periods without discomfort. She also noted that his service-connected lumbar spine arthritis and radiculopathy necessitated the use of narcotic pain medication on daily basis, which resulted in extreme daytime drowsiness as well as significantly decreased concentration and memory. A September 2017 mental disorder examination, noted that the Veteran’s anxiety disorder would result in occupation and social impairment with reduced reliability and productivity. The examiner noted that the Veteran’s symptoms included difficulty adapting to stressful circumstances, including work or a worklike setting. An October 2018 VA thoracolumbar spine examination report noted that the Veteran had chronic pain, including low back pain, that was managed with narcotic pain medication. It was also noted that he had chronic numbness, weakness, paresthesias, and pain in his legs that resulted in gait unsteadiness. Regarding functional impairment, it was noted that the Veteran was always in pain and spent most of his time sitting or lying down. Upon review of the record and after resolving all doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. The record indicates that the Veteran’s service-connected back and radiculopathy disabilities preclude physical employment. The Veteran’s work history is limited to manual labor and the evidence of record indicates that he lacks transferable skills needed for sedentary employment. Moreover, his need for narcotic pain medication and his service-connected anxiety disorder result in cognitive impairments that impact the mental acts required by both physical and sedentary employment. Given the foregoing,   and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record demonstrates that, as a result of service-connected disabilities, the Veteran is unable to secure and follow a substantially gainful occupation consistent with his education and work history. Accordingly, entitlement to TDIU is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson