Citation Nr: 21001499 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 11-19 583 DATE: January 8, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2003 to September 2003, from October 2004 to December 2005, from September 2008 to November 2009, and from April 2015 to May 2015, to include service in Iraq. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, granted the Veteran’s claim for service connection for lumbar spine disability, and assigned a 10 percent disability rating, effective November 20, 2009. The Veteran timely appealed that decision. In July 2019, the Board granted a 20 percent disability rating, effective November 20, 2009. Also, the Board found that the Veteran had properly raised a TDIU issue, claiming unemployability due to his back disorder based on the March 2018 physical therapy evaluation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU claim to the agency of original jurisdiction (AOJ), to request that the Veteran submit a completed application for increased compensation based on unemployability, VA Form 21-8940. At the onset, the Board notes that pursuant to the July 2019 remand, the AOJ sent two letters to the Veteran requesting that he furnish a completed VA Form 21-8940, and no response was received from the Veteran. Nonetheless, as set forth below, the evidence of record demonstrates that entitlement to a TDIU is warranted. Entitlement to a TDIU The Veteran seeks a TDIU, claiming that he has been unable to work as a result of his service-connected disabilities. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service-connected for anxiety disorder, rated as 70 percent disabling; a lumbar spine disability, rated as 20 percent disabling; right lower extremity sciatic radiculopathy disability, rated as 20 percent disabling; left lower extremity sciatic radiculopathy disability, rated as 20 percent disabling; right knee distal shaft of the right femur hairline fracture and partial thickness tears of medial patellar retinaculum and rectus femoris tendon with painful extension, rated as 10 percent disabling; and right knee distal shaft of the right femur hairline fracture and partial thickness tears of medial patellar retinaculum and rectus femoris tendon with limitation of flexion, rated as noncompensable (zero percent disabling). The Veteran has a combined disability rating of at least 70 percent and at least one disability rated 40 percent disabling. Therefore, he meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. The “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For the following reasons, a TDIU is warranted. The Veteran last worked as a corrections officer in April 2015, where he stated that his low back pain forced him to stop working. Regarding education, the highest grade completed was 11th grade. In an April 2016 Social Security Disability opinion, the Veteran was granted Social Security benefits based on disability, finding that the Veteran’s low back and knee pain limited his ability to engage in physical labor, and that he lacks residual functional capacity (RFC) to perform past relevant work. His psychiatric disability was listed as a secondary diagnosis. In a March 2018 physical therapy evaluation, the physical therapist opined that the Veteran’s low back pain rendered it difficult to complete the physical duties required for his previous position as a corrections officer. Moreover, the physical therapist posited that he would most likely be unable to perform even sedentary work due to “his need for frequent rest breaks and his inability to stand and walk at a professional level.” Significantly, in the report of the February 2020 VA back examination, the examiner concluded that the Veteran cannot perform physical work due to his service-connected lumbar spine disability. Additionally, the examiner opined that it would be difficult to perform even sedentary work. (Continued on the next page)   Taken together, the Board finds that the functional limitations caused by the Veteran’s lumbar spine disability and knee disorders have rendered him unable to secure or follow substantially gainful employment in light of his education and employment history. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (a). The Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating.”) K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.