Citation Nr: 21000488 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-31 977 DATE: January 5, 2021 ORDER A total rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1977 to August 1992. This matter was previously before the Board of Veterans’ Appeals (Board) in July 2020 when the issues of service connection for a lumbar spine condition, sleep apnea, and an acquired psychiatric disorder were remanded for further development. The issue of a TDIU was also remanded since it was inextricably intertwined with the remanded issues of service connection. Further development having been completed; the matter is once again before the Board. A TDIU due to service-connected disabilities is granted. The Veteran contends that a TDIU rating is warranted due to his service-connected disabilities. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and such service connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Assignment of a TDUI evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id. The Veteran’s service-connected disorders are major depressive disorder, rated as 70 percent disabling; left and right lower extremity radiculopathy, each side rated as 20 percent disabling; degenerative arthritis of the spine, rated as 20 percent disabling; left and right lower peripheral neuropathy, each side rated as 20 percent disabling; obstructive sleep apnea, rated as noncompensable; and scars of the lower back, rated as noncompensable. Therefore, the Veteran meets the minimum schedular rating necessary for a TDIU. 38 C.F.R. § 4.16(a). The record indicates that the Veteran last worked full-time in 2016 when he had his first back surgery following a fall. The record indicates that the Veteran has had multiple back surgeries. In a November 2017 VA examination, the examiner noted that the Veteran’s lumbar spine condition impacts his ability to work. In particular, the examiner noted that the Veteran is limited in bending, stooping, pushing, pulling, carrying and lifting moderate objects. However, the examiner noted that the Veteran is able to perform light physical and sedentary tasks due to his diagnosis. In a May 2018 Social Security Administration decision, the Veteran was found to have severe impairments, including degenerative disc and joint disease, neuropathy, and obstructive sleep apnea. The Veteran was found not to have engaged in substantial gainful activity since June 2016. However, the Veteran was found to have the residual functional capacity to perform sedentary work. Although, it was found that the Veteran can never climb, crawl, kneel, pull/push, carry, bend, twist, stoop, operate a motor vehicle, operate hazardous machinery, or operate power tools. Importantly, the Veteran was found to be incapable of sustaining even two hours of work in an average workday. In an August 2020 VA Mental Disorders Disability Benefits Questionnaire (DBQ), the examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran reported that he stopped working full-time in 2016 when he had back surgery. He stated that he attempted to go back to work after his first back surgery, but that he was unable due to pain. He stated that he currently works part-time at a hotel as an auditor. He stated that he uses a wheelchair during his shifts and that he is able to work in this position because he is able to sit for his entire shift. In an October 2020 Sleep Apnea DBQ, the examiner noted that the Veteran’s sleep apnea impacts his ability to work. Specifically, the examiner stated that the Veteran has difficulty with concentrating and focusing due to hypersomnolence and that he is severely tired during day hours due to sleep apnea. Although the Veteran has reported part-time employment, the Board finds that this employment is not a substantially gainful occupation. The record indicates that the Veteran was last employed on a full-time basis in 2016. Since then, he has had multiple back surgeries. The record also indicates that the Veteran is significantly limited in the type of duties that he is able to engage in and the duration that he is able to work in an average workday. The record shows that the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. Therefore, a TDIU is warranted, and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.