Citation Nr: 21002037 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-11 201 DATE: January 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from December 1983 to October 1992. He testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in January 2020. Entitlement to a TDIU. Without regard to advancing age or impairment due to nonservice-connected disabilities, if a schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies); provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran’s service-connected disabilities alone are of sufficient severity to render him or her unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). For the entire appeal period, the Veteran has been service-connected for major depressive disorder (anxiety and depression), rated as 50 percent disabling; thoracolumbar spine (low back) disorder, rated as 50 percent disabling; right lower extremity sciatic radiculopathy, rated as 10 percent disabling; left inguinal hernia, chronic headaches, and palpebral allergic conjunctivitis, all rated as noncompensable. His combined rating is 70 percent. He meets the schedular criteria required for a TDIU. The question before the Board is therefore whether the Veteran’s service-connected disabilities alone render him unable to secure and follow substantially gainful employment. After having carefully considered all of the evidence of record, the Board finds that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment and a TDIU is warranted. The Veteran’s Application for Increased Compensation Based on Unemployability filed in April 2015 shows that he completed high school and has an associate degree in applied technology. He also has additional training, which he clarified at his VA examination in June 2015. He stated he received a technical degree in electronics in 2002. That VA examination report also states: The Veteran has been receiving medical retirement from OPM since April 2012. He received a medical retirement for a back condition and carpal tunnel syndrome. The Veteran worked at H.F. as a civilian GS employee from 1992 to 2012 until medical retirement. Before that he worked at the Department of Veteran’s Affairs for 2 years, from 1998 to 1999. Before that he worked for the Ogden City Corporation from 1993 to 1998. The Veteran’s TDIU application indicates that following his medical retirement, he sought VA Vocational Rehabilitation training from 2012 to 2015. Despite this additional training, he has not been able to sustain gainful employment. Specifically, his TDIU application shows that from March 2012 to July 2012, he worked at the Home Depot. He worked part-time hours and reported losing a significant amount of work time and ultimately having to quit as a result of his low back disorder. He does not have any experience in sedentary work. All of his work experience has required him to be upright and on his feet for many, if not all, of the hours worked. It is worth noting that the Veteran’s low back disorder is currently rated as 40 percent disabling. This means that his low back disability picture most nearly approximates favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine to 30 degrees or less. On VA examination for his low back in June 2015, the Veteran endorsed flare-ups whereby he cannot get out of bed because of his low back. Indeed, the examiner noted “there are contributing factors of pain, weakness, fatigability and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. Unable to forward flex or tend. Unable to side bend or rotate, confined to bed.” In addition to his physical impairments, on VA examination in June 2015, a Board-Certified Psychiatrist outlined significant impairments caused by the Veteran’s major depressive disorder. Specifically, she stated: The Veteran struggles with depression mood for the most part. Veteran said that to him it feels like he is “fighting low mood most times.” The Veteran tried to get going and get things done, but feels gloomy. Veteran has a loss of interest in interacting with people. Being with new people and being in new places is especially unnerving for him, and he becomes nervous and anxious. He becomes fidgety and restless . . . Veteran has a hard time making and keeping friends and relationships. He has also lost interest in fly fishing. The Veteran said that this used to be his hobby, it takes years to learn fly fishing, and now he has lost all interest in it because of anxiety, depression, and the chronic pain from his service-connected thoracolumbar spine disorder. The Veteran has disturbed sleep. He sleeps excessively. HE may sleep for 10 to 11 hours in 1 day . . . When depressed, the Veteran’s appetite is decreased. He gets maybe 1 or 2 snacks in the day. When depressed, Veteran is low on energy and feels tired and fatigued. HE tries to take vitamins every day to help with energy levels. Chronic pain from the thoracolumbar spine disorder makes it difficult for him to stand or sit for long periods of time. It is difficult to bend and left things, and he needs frequent breaks. This further worsens his fatigue due to the depressive symptoms. The Veteran has problems concentrating. He might be able to concentrate on some house chore for half an hour, but then needs a break because he has problems concentrating due to depressive symptoms and due to chronic pain from service-connected thoracolumbar spine disorder. This makes is difficult for him to concentrate and complete tasks like doing laundry, doing dishes, or vacuuming. The evidence of record shows that his service-connected low back disorder exacerbates his major depressive disorder. As a result of both, he is unable to concentrate on one task for more than 30 minutes. In addition, his low back disorder precludes him from standing or sitting for long periods of time and his depressive symptoms worsen his fatigue. These impairments have been noted to be almost constant. It is not reasonable to assume that an employer would make accommodations for these impairments. The available evidence of record clearly shows that the Veteran has attempted to obtain additional training to secure substantially gainful employment and has been unable to do so. The Board finds that the Veteran’s service-connected disabilities preclude him from securing and obtaining substantially gainful employment. As such, a TDIU is granted. This represents a full grant of the benefits sought on appeal. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.