Citation Nr: 21001769 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-02 521 DATE: January 11, 2021 ORDER Entitlement to a finding of total disability rating based on individual unemployability (TDIU), for the period from December 1, 2018, is granted. FINDING OF FACT The Veteran last worked full time at substantially gainful employment in August 2017; since December 1, 2018, service-connected disabilities render the Veteran unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are met as of December 1, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.7, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1972 to February 1974. He timely appealed this matter from a September 2016 rating decision. The procedural history and posture of this claim is quite complicated due to the enactment of the “Veterans Appeals Improvement and Modernization Act,” Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), which created a new appellate framework for claimants dissatisfied with VA’s decision. The AMA is applicable to decisions rendered after February 19, 2019. However, the Veteran elected to participate in the Rapid Appeals Modernization Program (RAMP), a pilot program for the AMA. In September 2016 and in December 2017, the Agency of Original Jurisdiction (AOJ) issued decisions under the old, Legacy system which assigned staged ratings for the Veteran’s lumbar spine disability and granted service connection for associated radiculopathy of each lower extremity. The Veteran also raised arguments involving entitlement to a TDIU. In April 2018, he opted-in to RAMP with regard to these issues, and selected the Higher Level Review option at the AOJ. The RAMP decision denying the appeals was issued in January 2019. The Veteran then elected direct review by a Veterans Law Judge (VLJ). Direct review entails adjudication on an identical record; no further development takes place. Remand is not permitted, except for certain pre-decisional errors. In an April 2019 decision, the Board of Veterans’ Appeals (Board), in pertinent part, denied the Veteran’s claims for higher staged ratings for lumbar spine disability. The Veteran appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, on the basis of a Joint Motion for Partial Remand, the Court vacated the Board decision in part and remand this appeal to the Board. In an April 2020 decision, the Board readjudicated the staged ratings for lumbar spine disability, to include staged ratings for associated radiculopathy of each lower extremity, including a finding that the claims for increase had been pending since an unadjudicated July 9, 1986, filing; and remanded the matter of entitlement to TDIU to correct a pre-decisional error that occurred prior to the April 2018 RAMP opt-in. Such is possible under Rice v. Shinseki, 22 Vet. App. 447 (2009) (A claim for TDIU is part and parcel of a claim for increase.) The TDIU claim is considered pending since receipt of the increased rating claim for lumbar spine disability—that is, from July 9, 1986. Rice, supra. Here, substantial compliance with the Board’s April 2020 remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU 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. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). For the period from July 9, 1986, a finding of entitlement to TDIU is dependent upon consideration of the impact of each of the Veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. §§ 4.16. Age is not a factor. 38 C.F.R. §§ 4.19. Service connection is in effect for lumbar spine disability, rated as 20 percent disabling prior to April 20, 2015, and as 40 percent disabling thereafter; for radiculopathy of each lower extremity, each rated as 40 percent disabling from April 20, 2015; for residuals of neck injury, rated as 30 percent disabling from March 15, 2017; and for residual scarring, rated as 0 percent (noncompensable) disabling. For the period from July 9, 1986, and prior to April 20, 2015, the Veteran did not meet the schedular eligibility criteria for TDIU benefits. The Board finds that the Veteran was not unemployable prior to April 20, 2015. Specifically, the evidence shows that the Veteran either was looking for work or was employed. Hence, there is no need to refer the Veteran’s claim for consideration of an extraschedular TDIU, pursuant to 38 C.F.R. § 4.16(b). As of April 20, 2015, the combined rating for service-connected disabilities was 80 percent disabling. The combined rating increased to 90 percent disabling effective March 15, 2017. Hence, the threshold percentage requirements for consideration of a TDIU are met from April 20, 2015. In this case, the Veteran has completed four years of high school; he has had no other education or training. In 1976, the Veteran reported that his lumbar disability did not really bother him all the time; and, at times, it did give him problems, particularly with really heavy work due to the lifting involved. He tried driving a truck for a while, but after sitting behind the wheel for some time his lumbar disability gave him problems. In July 1986, the Veteran reported that the job in which he was trained is not one in which he feels his lumbar disability can handle; and as he became older, his lumbar disability continued to worsen and degenerate. He reported being turned down recently for employment. In June 2016, the Veteran reported that it was hard to sit at his desk all day at work. His occupational history included working in electrical; and from January 2012 to November 2018, he worked forty-hours weekly at a company doing electrical work. He reportedly last worked full-time in August 2017 and became too disabled to work approximately in November 2018. The Veteran reported that his lumbar disability and associated radiculopathy of each lower extremity caused difficulties when sitting in front of computer; when standing at job-site meetings; when walking construction sites due to trip hazards; when climbing job ladders and stairs; and when lifting materials or heavy blue-print drawings. An August 2016 VA examination report reveals that the Veteran reported his lumbar pain as getting worse; and described flare-ups as moderate pain that aggravated and “could get off the scale.” His functional impairment prevented him from going to work at times. Because of his lumbar disability, the Veteran was unable to pick up very heavy things or bend or lift. Contributing factors of disability in February 2017 included less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. A February 2017 examiner also noted severe mental stress due to long-term chronic pain that was progressive and unresolved. Job restrictions included lifting of equipment, bending, stooping, twisting, limited evaluations of items low to the ground, and limited walking at job sites from pain in legs and feet and fatigue. A March 2017 VA examination report reveals that the Veteran’s residuals of neck injury also limited his flexibility and ranges of motion of cervical spine, and decreased mobility due to pain. Another VA examiner in December 2017 noted that the Veteran continued to have considerable lumbar pain and bilateral radicular symptoms following a recent surgery. The Veteran wore a back brace at all times, and had to refrain from ranges of motion and from lifting of even modest loads. In March 2019, the Veteran’s treating physician indicated that the Veteran’s lumbar disability had degenerated to the point where the Veteran was forced to retire due to pain and physical disability from degenerative spine disease. Regarding the Veteran’s radiculopathy of each lower extremity, another examiner in March 2019 noted an impact on the Veteran’s ability to work; and indicated that the radiculopathy limited the Veteran to walking one mile, sitting for 45 minutes, standing for 10 minutes, and squat-crouching or kneel-crawling briefly. The Veteran has asserted that he is unemployable due to his service-connected disabilities. Here, the evidence of record reveals that the Veteran worked full-time from January 2012 through August 2017, and had stopped working on November 30, 2018. His treating physician opined that the Veteran’s lumbar disability had degenerated to the point where the Veteran was forced to retire due to physical pain. The Veteran also had limitations in sitting and standing, and he sustained mental stress from chronic pain that progressed. These are valid considerations that must be factored into the determination. The realistic chances of him obtaining and retaining employment must also be considered in light of his physical and educational capabilities. Although it is conceivable that there may be some occupations that the Veteran could perform, the totality of the evidence supports a finding that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his education and work background are taken into consideration. In this regard, the Veteran’s ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Here, the record tends to establish that the impact of service-connected disabilities renders this Veteran, with occupational experience limited primarily to managing of electrical tasks, to be unable to engage and retain substantially gainful employment. The overall evidence demonstrates that the Veteran was unable to secure and follow any substantially gainful occupation by reason of service-connected disabilities as of December 1, 2018, the date reported that he last worked. Accordingly, an award of TDIU is warranted as of December 1, 2018, due solely to service-connected disabilities. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.