Citation Nr: 20009767 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 17-25 666 DATE: February 5, 2020 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from obtaining and maintaining gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to December 1990. In December 2019, the Veteran testified before the undersigned Veterans’ Law Judge. A copy of the transcript is a part of the record. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for intervertebral disc syndrome (IVDS) of his lumbar spine, hemorrhoidectomy, radiculopathy of his bilateral lower extremities, radiculopathy of his upper left extremity, cervical spondylosis, bilateral hearing loss, tinnitus, IVDS of the lumbar spine, allergic rhinitis, and a scar of his lumbar spine. His total disability rating is 80 percent; for purposes of determining if the Veteran meets the schedular requirements for TDIU, because he is in receipt of the bilateral factor for his bilateral lower extremity radiculopathy, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. The central inquiry in determining whether a TDIU is warranted 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19. In May 2017, a private examination report indicated that the Veteran had limited abilities to sit or stand, including a maximum amount of standing of 240 minutes total in any given day. His walking was limited to 1 mile. He was limited in his ability to lift and carry and was unable to tolerate crouching, crawling, and prolonged neck positioning. He was noted to have less than occasional ability for static standing, dynamic standing, walking, carrying, pushing, pulling, climbing or stooping. He was not able to have prolonged neck positioning, crouching, or crawling. He was noted to have insufficient hearing for normal conversation. The Veteran testified in his December 2019 hearing that his lumbar disabilities prevent him from standing or sitting for prolonged periods of time and that he is incapable of sustaining substantially gainful employment. He stated he previously worked for the U.S. Postal Service but had to retire due to the inability to walk or stand for prolonged periods. He also testified that he was unable to sit for any prolonged period of time. Affording the Veteran the benefit of reasonable doubt, and based on the foregoing, the Board finds that the Veteran’s service-connected disabilities preclude gainful employment and, therefore a TDIU is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.