Citation Nr: 20023069 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 14-28 026 DATE: April 2, 2020 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected disabilities is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1953 to September 1981. In July 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a May 2018 Board decision, the Board denied the Veteran’s claim for entitlement to a TDIU. The Veteran appealed the denial of the claims to the Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a May 2019 Joint Motion for Partial Remand (JMPR). The parties agreed that the Board’s May 2018 denial of the above claim should be vacated and remanded because the Board erred in failing to provide an adequate statement of reasons or bases for its finding that entitlement to a TDIU was not warranted. Specifically, the Court found the Board did not consider all the Veteran’s lay statements. TDIU A total rating for compensation purposes 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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). In this case, in terms of whether the minimum schedular requirements for TDIU are met, the Veteran has been in receipt of a 40 percent rating for degenerative cervical arthrosis; a 20 percent rating for status post right radial head resection; a 10 percent rating for hypertension; a 10 percent rating for tinnitus; 10 percent rating for dermatophytosis; a 10 percent rating for ischemic change in left mid brain with atrophy; a 10 percent for limitation of flexion right forearm; a noncompensable rating for greater tronchanteric bursitis of the right hip; a noncompensable rating or bilateral hearing loss; and a noncompensable rating for hemorrhoids; and a noncompensable rating for limitation of extension right forearm. The Veteran has a combined rating of 70 percent throughout the period on appeal. Here, because the Veteran’s service-connected disabilities combine to a rating of at least 70 percent with at least one disability rated at 40 percent or greater, the Veteran has met the schedular requirements. Thus, the issue in this case is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment. In the JMPR, the Court noted that the Veteran is entitled to submit additional evidence and argument and that the Board must “reexamine the evidence of record.” Based on the evidence of record, to include the newly submitted evidence, the Board finds that the evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. The Veteran contends that his service-connected status post right radial head resection, bilateral hearing loss, and neck and nerve disabilities have precluded him from following any substantially gainful employment. On the Veteran's application for increased compensation based on unemployability, the Veteran reported that he last worked full time in 2008 and last worked part-time in 2016. His entire reported employment was in air-conditioning repair. See November 2017 VA Form 21- 8940. The Board notes that based on the Veteran's DD-214 records, during the Veteran's almost 28 years of service, he was a telecom operations supervisor. The Veteran’s lay statements include a July 2011 statement in which the Veteran discusses loss of use of his right arm, which hampers his ability to work in heating, ventilation, and air conditioning. Also, an April 2013 statement in which the Veteran states that that he “tried [to work] but it lasted two days and landed me back in rehab[,] and “my right elbow and wrist prevents me from working [.]” The Board notes that the Veteran also submitted in a statement received in February 2020 after the May 2019 JMPR, thus it is the first time this evidence is being considered. The Veteran states that by 2008, due to his right arm condition, he could not support his own body weight and was not able to continue his private business air-condition repair business full time. He continued to work part-time until 2016. However, due to the progression of his service-connected disabilities, the Veteran stated he was unable to perform the functions of his job and closed up his shop. The Veteran notes he only has experience doing appliance repair and has no experience working with computers. Additionally, the Veteran submitted a January 2020 Vocational Assessment received in February 2020. As this evidence was submitted after the May 2019 JMPR, it has not been previously considered by the Board. The examiner reviewed the Veteran’s entire claims file and conducted a telephonic interview with the Veteran. The examiner opined that the Veteran is more likely than not unable to secure and follow substantially gainful employment, including sedentary employment, as a result of his service-connected disabilities. The examiner explained that the Veteran’s limitations in sitting, standing, walking, and lifting, due to his service-connected neck, right hip, right elbow, and external hemorrhoids conditions, preclude him from performing the physical requirements of even sedentary employment since May 2011. As of July 2017, his service-connected right forearm limitations in extension and flexion have further contributed to these limitations further precluded him for gainful employment. The examiner noted that the Veteran is limited to standing for 30 minutes and walking to 500 feet and that the Veteran’s condition has progressively worsened with noted problems of lack of stamina, decreased energy, and pain. The examiner also specified that the Veteran is not able to perform sedentary work, as sedentary work requires the ability to stand and walk occasionally throughout the day. The examiner noted that the Veteran is unable to walk or stand for even short periods of time due to the combination of his service-connected right hip and neck conditions. These limitations are incongruent with the definition of sedentary employment and would preclude the Veteran from performing the full range of exertional tasks required for sedentary employment. Furthermore, the examiner noted that the Veteran’s inability to ambulate safely throughout the workplace would be considered a safety risk. Thus, the examiner concluded that the culmination of the severe and chronic pain the Veteran experiences resulting from his service-connected disabilities would likely distract him to an extent that would interfere with his ability to sustain concentration on work task for two consecutive hours. As a result, he would be off-task and unproductive during these lapses in concentration. Therefore, the Board finds that based on the Veteran's lay statements as to the symptomatology of his service-connected disabilities, coupled with the collective impact of the Veteran's service-connected disabilities, and January 2020 Vocational Assessment, which expressly states that the Veteran cannot work due to his service-connected disabilities, all support a finding that the evidence is in equipoise that that the Veteran was unable to secure and follow a substantially gainful occupation by means of his service-connected disabilities. The Board notes that the Veteran was afforded VA examinations in July 2011, June 2012, and March 2013. The VA examination reports do not reflect the Veteran is unable to secure or follow substantial employment. Conversely, in the January 2020 Vocational Assessment, after reviewing the Veteran’s entire claims file, the vocational examiner concluded that the Veteran is unable to maintain substantial gainful employment on a regular and consistent basis even at the sedentary level of work due to the collective impact of his service-connected disabilities. In coming to this conclusion, the vocational evaluation noted the physical limitations associated with the Veteran’s service-connected disabilities. The vocational evaluator noted that even at a sedentary level of employment a worker must be able to successfully maintain pace and production expected by the employment without frequent interruptions. Thus, in sum, due to the severity of the combined service-connected disabilities, symptoms, and limitations, the Veteran has been and continues to be, unable to follow and sustain substantially gainful occupation, even at a sedentary level of work. When determining whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment, the Board notes that although the VA examination reports indicate sedentary employment is possible, the VA examiners did not consider the Veteran’s previous line of work. The Board has considered that the Veteran’s entire career has been in appliance repair, which is not a sedentary position. Thus, the Veteran does not have any experience in a position that would be conducive to sedentary employment. Furthermore, the Board notes that the VA examiners did not consider the combination of the Veteran’s service-connected disabilities, rather each VA examiner evaluated each disability separately, and the conclusions were based on the effect that each disability, solely, has on the Veteran’s ability to obtain employment. In contrast, the January 2020 Vocational Assessment considered the combination of the Veteran’s service-connected disabilities; and ultimately concluded that even sedentary employment was not possible due to the limitations attributed to the Veteran’s service-connected disabilities. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, entitlement to a TDIU is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.