Citation Nr: 18159019 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-55 695 DATE: December 18, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted effective November 29, 2012. FINDING OF FACT The Veteran’s service connected disabilities result in his inability to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met throughout the relevant period on appeal. 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 in the United States Navy from November 1984 to October 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that although the rating decision was issued in November 2014, the Veteran did not receive notice of the rating decision until March 24, 2015. After this time, he filed a timely notice of disagreement (NOD) on March 23, 2016. See 38 C.F.R. § 20.204. TDIU The Veteran asserts that he is unable to obtain and maintain substantially gainful employment because of his service-connected back, lower extremity and psychiatric disabilities. As an initial matter, the Board notes that the period on appeal begins November 29, 2012. On this date, VA received the Veteran’s claim seeking an increased rating for his low back disability and further seeking service connection for a psychiatric disorder. In a March 2014 rating decision, the RO granted service connection for major depressive disorder and radiculopathy of the right and lower extremities. In August 2014, the Veteran submitted an application for increased compensation based on unemployability, asserting that he is unemployable due to his service-connected disabilities. New examinations were completed in connection with this claim in October 2014. Thus, the issue of entitlement to a TDIU relates back to the claim received by VA on November 29, 2012. 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned where 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional combined service connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Throughout the appeal period, service connection has been in effect for major depressive disorder rated at 70 percent disability, degenerative disc disease of the lumbar spine rated at 20 percent disabling, and left and right lower extremity radiculopathy. The Veteran’s combined rating has been 80 percent throughout the appeal period. Thus, the Veteran meets the schedular requirements for TDIU. The Board finds that a TDIU is warranted throughout the appeal period. The Veteran has a high school diploma and completed one year of college. His occupational history includes work at a warehouse, as a cosmetologist, and as a commercial truck driver. He reported that he last worked in 2009 as a truck driver. The evidence of record shows that the Veteran cannot work in a substantially gainful occupation commensurate with his education and occupational experience as a result of functional impairment caused by his service-connected disabilities. The Veteran reports that he experiences chronic back pain, memory issues, and bilateral leg pain that feels analogous to his legs bursting into hot flames. His depression results in irritability, intrusive memories, mild memory loss (forgetting directions), chronic sleep impairment, and difficulty adapting in stressful environments. It was noted that his depression symptoms result in difficulty thinking and making decisions. The December 2013 VA examiner found that during periods of stress, the Veteran experiences high levels of anger and cognitive distortions. See December 2013 VA examination. The November 2013 VA examiner opined that the Veteran’s back condition limits his ability to bend, climb stairs, and that he must change positions every 15-30 minutes. The examiner found that the Veteran could not sit for more than 1 hour at a time and for no more than 3 hours in a day, that he could not walk for more than 2 hours and that he could not stand for more than 5 to 10 minutes at a time or for more than 2 hours during the day. Although the October 2014 VA examiner concluded that the Veteran’s back condition does not affect his ability to work, the Board finds that the evidence of record supports a finding that his functional limitations as caused by his depression, low back and lower extremity disabilities, including an inability to stand, walk or sit for a long period of time, would prevent his ability to perform work commensurate with his experience. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question). Consequently, a TDIU is warranted because the function impairment resulting from a combination of the Veteran’s service-connected disabilities precludes him from obtaining or maintaining substantially gainful employment. TRACIE N. WESNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel