Citation Nr: 21000563 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-16 502A DATE: January 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to January 1985. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in August 2017. This issue was previously remanded by the Board in September 2020 and has since been returned for further adjudication. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Initially, the Board notes that the Veteran does not meet the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected cervical spine, bilateral upper extremity radiculopathy, and mild traumatic brain injury (TBI). 38 C.F.R. § 4.16(a). Nevertheless, referral for TDIU consideration on an extraschedular basis would be appropriate if the evidence showed that the Veteran was unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Military personnel records reflect the Veteran’s military occupation specialty (MOS)/rating was that of personnel management specialist and infantryman. On his November 2004 application for unemployability he reported his cervical spine disability prevents him from following a substantially gainful occupation. The Veteran reported completing high school. He reported he last worked full-time in September 2003 as a warehouse worker. He previously had worked on a weed eater crew, as a dishwasher, and as a custodian. A June 2010 VA TBI examination noted that the Veteran’s mild TBI/concussion resolved without residuals. While the Veteran reported that he had increased tardiness and absenteeism, lack of stamina, weakness or fatigue, and pain, the examiner explained that the Veteran was unable to differentiate between his TBI and his other mental and psychological issues. As the report noted a diagnosis of schizophrenia, the Board observes that service connection has been denied for myofascial pain and schizophrenia and these conditions cannot be considered in determining whether the Veteran is unemployable due to service-connected disabilities. An April 2012 VA neck examination noted the Veteran’s complaints of radiating neck pain, as well as upper extremity numbness and tingling. The examiner determined the neck condition did not impact the Veteran’s ability to work. A June 2018 VA neck examination noted that the Veteran’s complaints of neck pain which radiated into the right arm, as well as right arm weakness, numbness, and paresthesias/dysesthesias. The examiner found the neck condition impacted the Veteran’s ability to work in that it would limit the Veteran’s ability to move his neck from side to side and to the back. Treatment records are not in significant conflict with findings during VA examinations. Taken as a whole, the Veteran’s symptoms due to service-connected disability would not render him unable to obtain and maintain employment. While the Veteran believes his TBI residuals may affect tardiness and absenteeism, among other things, the medical evidence indicates that his concerns take into consideration nonservice-connected disabilities. Regarding the service-connected TBI residuals, the most probative evidence is the report of the VA examiner which took into account examination findings and the Veteran’s self-reports and found that the mild TBI resolved. Thus, the Board finds the TBI would not significantly affect employment. The neck and upper extremity radiculopathy are shown to result in pain as well as some numbness and tingling. The Veteran testified that this would affect fine manipulation and limit physical tasks, and a VA examiner indicated a limited ability to turn the neck certain directions. These limitations would likely preclude strenuous physical work and any work requiring fine manipulation. The limitations on neck motion would further preclude some physical positions where repeatedly and fully turning the neck was important for safety or was required as part of the physical acts of employment. The Veteran has a high school education and spent some of his time in the Army working in personnel. He additionally has experience in unskilled employment that would likely require light physical work. Thus, he is qualified through training, education, and experience for a variety of positions that would not involve strenuous physical activity, fine manipulation, or the need for full motion of the neck. For example, the Veteran could work at a call center, in an office, as a clerk, or in customer service. These are just a few examples of available positions for which the Veteran would be qualified and able to perform. Notably, the Veteran’s TBI is not shown to result in significant cognitive or interpersonal issues and he is not otherwise service-connected for any mental health disorder. The types of positions the Veteran could engage in would pay about the poverty threshold. The Board acknowledges the Veteran’s physical limitations would make it difficult to work. However, after review of the evidence of record the Board finds that the Veteran’s functional limitations due to his service-connected disabilities would not preclude employment. Thus, a TDIU is not warranted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.