Citation Nr: 18158359 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 09-22 350 DATE: December 14, 2018 ORDER Entitlement to a total rating for compensation purposes based on individual un-employability due to service-connected disabilities prior to September 14, 2018, is granted. FINDING OF FACT The Veteran is unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from June 1968 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran also appealed a September 2008 rating decision issued by the VA RO in Providence, Rhode Island which denied service connection for obesity. An August 2018 rating decision established service connection for obesity, and merged it with the service-connected intervertebral disc syndrome (IVDS) and degenerative arthritis of the lumbar spine. Therefore, no active issue remains on appeal. In a November 2018 rating decision, the Veteran established a total rating of 100 percent, effective September 14, 2018. As a result, the TDIU claim will only be considered prior to September 14, 2018. Entitlement to a total rating for compensation purposes based on individual un-employability (TDIU) due to service-connected disabilities prior to September 14, 2018 The Veteran contends that he is entitled to TDIU as a result of the functional impact the service-connected disabilities have on the ability to obtain and retain gainful employment. The Veteran asserts that he has not worked since 2002. TDIU may be assigned, if the schedular rating is less than total, when the disabled 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). At all times during the appellate period, the Veteran met the schedular eligibility requirements. 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to September 14, 2018, the Veteran had established service connection for coronary artery disease (CAD), rated 60 percent; degenerative arthritis of the left knee, rated 40 percent; degenerative arthritis of the right knee, rated 40 percent; polyuria, rated 40 percent; hypertension and microalbuminuria, rated 30 percent; IVDS with degenerative arthritis and osteoporosis of the lumbar spine, to include secondary obesity, rated 40 percent; radiculopathy and diabetic peripheral neuropathy, with involvement of the sciatic nerve of the right lower extremity, rated 10 percent; radiculopathy and diabetic peripheral neuropathy, with involvement of the sciatic nerve of the left lower extremity, rated 10 percent; radiculopathy and diabetic peripheral neuropathy, with involvement of the femoral nerve of the right lower extremity, rated 10 percent; radiculopathy and diabetic peripheral neuropathy, with involvement of the femoral nerve of the left lower extremity, rated 20 percent; diabetes mellitus, rated 20 percent; and tinnitus, rated 10 percent. The Veteran’s combined service-connected disability rating as of December 14, 2011, was 70 percent, and as of September 14, 2018 was 80 percent, with the musculoskeletal disabilities combining to a total of at least 40 percent using the bilateral factor. Therefore, the Veteran meets the minimum schedular requirements for eligibility to individual unemployability. The question remains whether the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In a September 2000 spine examination, the Veteran reported doing work at the post office where he would “get up often and walk around.” In a May 2003 VA examination, the examiner opined that it was highly likely that the Veteran would not be able to secure gainful employment primarily due to morbid obesity. The Veteran’s spine symptoms were noted as being “constant and daily.” In a July 2018 VA spine examination, the examiner noted that the Veteran’s back disability would impact his ability to work, and the Veteran should avoid bending, lifting, walking, and twisting. In a January 2012 VA examination, the examiner opined that the Veteran’s coronary artery disease “impacts his ability to work due to frequent fatigue, dyspnea, and intermittent chest pain on mild physical exertion.” In a March 2012 VA examination, the Veteran reported experiencing dizziness and feeling lightheaded when standing up too quickly as a result of hypertension. The VA examiner observed the symptoms on examination, and found that the Veteran’s hypertension did impact his ability to work. In a July 2018 VA hypertension examination, the examiner opined that the Veteran’s disability would impact his ability to work. The examiner further stated that as a result, he should avoid tasks that are stressful and require extended time working greater than eight hours per day. In November 2015, the Veteran reported working over 28 years with the postal department as a bulk mail tech. The Veteran retired in November 2002. A November 2015 mental health note indicated that the Veteran had gained weight again “losing walking with cane with great pain and unsteadiness.” The Board finds that the Veteran’s service-connected back disability, to include obesity; coronary artery disease; and hypertension disabilities, in combination with the other service-connected disabilities, combine to make the Veteran unable to secure or follow a substantially gainful occupation. From September 2000 through July 2018, examiners have discussed the impact of these disabilities on the Veteran’s ability to work. The May 2003 examiner opined that the Veteran would likely not find gainful employment as a result of obesity, which has now been found to be part of the service-connected back disability. The examinations indicated that the Veteran should avoid bending, lifting, walking, and twisting. Examinations also noted dizziness upon sudden movement, and frequent fatigue, dyspnea, and intermittent chest pain. These are all characteristics of functions that will be required in most job settings, that the Veteran is shown to have consistent difficulty performing. It is provided further that the existence or degree if non service-connected disabilities or previous unemployability status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. 38 C.F.R. § 4.16(a). Having examined the service-connected disabilities, and resolving reasonable doubt in favor of the Veteran, the Board finds that there is an opinion of record that the back disability with obesity, the cardiovascular disabilities, and the other service-connected combine to preclude substantially gainful employment. Accordingly, the Board finds that the criteria for TDIU, prior to September 14, 2018, are met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel