Citation Nr: 20002452 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 16-32 782 DATE: January 10, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSION OF LAW The criteria for entitlement to TDIU has been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1984 to July 1984 and from September 2010 to September 2011. Entitlement to TDIU. For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). In determining unemployability, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Here, the Veteran is service-connected for degenerative disc disease of the lumbar spine, rated as 20 percent disabling from September 8, 2011 to April 2, 2013 and 40 percent disabling thereafter. He is also rated at 30 percent disabling for PTSD effective September 8, 2011; 20 percent disabling for radiculopathy of the right lower extremity effective September 8, 2011; 10 percent disabling for radiculopathy of the left lower extremity effective April 3, 2013;10 disabling for tinnitus effective September 8, 2011; and 0 percent disabling for hearing loss of the left ear. He holds a combined 70 percent rating effective April 3, 2013. He filed his TDIU claim in October 2013. Therefore, the Veteran is eligible for consideration of a schedular TDIU rating for the entire appeal period. The record reflects that the Veteran has a GED education. After his discharge from service, the Veteran worked as an installer and carpenter. He has no other training or experience in any other field. The Veteran’s medical records document his complaints of pain and weakness in his back that radiates to his legs. Treating clinicians also note the Veteran’s significant impairment in occupational and social functioning due to his PTSD. According to the Veteran’s August 2019 hearing, the Veteran testified that he gets approximately one hour of sleep due to his chronic pain and has had days where he is unable to move. He stated that he is unable to stay on his feet for long periods of time. The Veteran also stated that he has frequent anxiety attacks and has difficulty concentrating, as well as being around people. According to the October 2013 VA examination, the examiner opined that the Veteran is “capable of sedentary employment with a flexible schedule to take into account time off for flares of symptoms and allow for stretching periods.” The examiner reasoned that the Veteran cares for himself, drives locally, and is capable of paying bills and doing simple math. Further, the examiner noted that his subjective complaints are out of proportion to his objective MRI findings. In support of his claim, the Veteran submitted a letter from his treating physician, R.P., in October 2013. R.P. opined that the Veteran has suffered from moderate to severe constant and chronic pain. He noted that the Veteran’s low back complaints are consistent with his physical examination, MRI, and patient history. R.P. determined that due to the degree and severity of his current pain, it would result in “significant exacerbations of his condition if he were to engage [in] employment.” The Veteran also submitted a letter from his psychiatrist, W.K., in January 2015. W.K. opined that the Veteran is unable to “have a meaningful work capacity given his chronic back and leg pain.” He added that it is “not foreseen that the Veteran can work in any capacity at this time.” Social Security Administration (SSA) records show that the Veteran was awarded disability benefits based on his back condition and PTSD for the period since November 2016. According to his functional assessment report, the Veteran suffers from pain, anxiety, and PTSD that is ongoing and severe enough to interfere with his attention and concentration. Additionally, it was noted that the Veteran’s work history is physical labor and he can no longer sustain such employment due to his disabilities. (continued on the next page) Considering the entire record, in light of the combined effects of his service-connected disabilities and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD and back condition have prevented him from maintaining substantially gainful physical and sedentary employment. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) Therefore, the Veteran's claim for TDIU is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adeleke, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.