Citation Nr: 21063299 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-36 163A DATE: October 13, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The record evidence shows that the Veteran's service-connected disabilities, alone or in combination, preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in June 2021; a transcript is of record. 1. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to the unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to deficiencies in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of employment and the reason for termination. Id. Although the Board must consider "the effect of combinations of disability" under 38 C.F.R. § 4.14, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). As part of this ultimate determination, VA is required to obtain a medical examination or opinion only when "necessary to make a decision on the claim." Id. (citing 38 U.S.C. § 5103A(d)(1)). Where separate medical opinions address the impact of employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. The Veteran's compensable service-connected disabilities are evaluated as follows: spinal fusion (previously rated as degenerative disc disease of the lumbar spine) as 20 percent disabling effective March 29, 2006, and 40 percent disabling effective July 9, 2019; left lower extremity radiculopathy associated with spinal fusion (previously rated as degenerative disc disease of the lumbar spine) as 40 percent disabling effective March 29, 2006, and 60 percent disabling effective December 21, 2017; and right lower extremity radiculopathy associated with spinal fusion (previously rated as degenerative disc disease of the lumbar spine) as 40 percent disabling effective March 29, 2006. When combined, including the bilateral factor, the Veteran's disability evaluation is 80 percent effective March 29, 2006, and 90 percent effective December 21, 2017. Accordingly, the criteria for schedular consideration of TDIU are satisfied. 38 C.F.R. § 4.16(a). The probative evidence of record also reflects that the Veteran's service-connected conditions negatively impact his ability to work. Specifically, the Veteran's private physician concluded that the Veteran's medical conditions, including his service-connected thoracolumbar spine disability, caused permanent disability and that "it seems unlikely that there would be any improvement in his medical status that would allow [the Veteran] to return to gainful employment." See April 2011 Letter from R.G., M.D. (received in March 2016). Additionally, the Veteran's determination of entitlement to Social Security Disability benefits found that, although the Veteran was disabled due to nonservice-connected disabilities, his back pain restricted him from: [L]ifting or carrying up to 20 pounds occasionally and up to 10 pounds frequently, sitting about [six] hours of an 8-hour day, and standing or walking up to [two] hours of an 8-hour day. [He] must avoid all reaching, bending, climbing balancing, stooping, kneeling, crouching, crawling, and squatting . . . As a result of his limited capacity for walking, his inability to perform postural activities . . . [he] would be unable to meet the demands of an 8-hour workday. See September 2006 Social Security Administration Disability Determination (received in January 2008, labeled "Medical Treatment Records Furnished by SSA). Furthermore, the Veteran's numerous VA examiners have all determined that his service-connected thoracolumbar spine disability and bilateral lower extremity radiculopathy restrict his ability to work. The July 2015 examiner found that the Veteran was not able to participate in an occupation that requires excessive walking, standing, bending, lifting, or twisting of the lumbar spine. An August 2017 VA examination report reflects that the Veteran's condition limited bending, lifting, and weight bearing and absolutely restricted squatting, crawling, and climbing. During a January 2018 examination, the examiner found that the Veteran was unable to carry objects and look up "let alone work overhead." The examiner found that he had lost one job because he was unable to do the work and that he could not do electrical work "due to pain." See January 2018 VA Thoracolumbar Spine C&P Examination. Most recently, at a June 2019 examination, the examiner concluded that the Veteran could not perform lifting, overhead work, or bending without pain and therefore his thoracolumbar spine condition with bilateral lower extremity radiculopathy negatively affected his ability to work. Resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected spinal fusion and bilateral lower extremity radiculopathy have resulted in unemployability, based on the evidence discussed above. Given the Veteran's symptoms and noted functional impairment due to his service-connected disabilities, the Board affords the Veteran the benefit of the doubt and finds that his service-connected disabilities satisfy the criteria for TDIU. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16(a); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans' has 'taken upon itself the risk of error' in awarding . . . benefits"). Accordingly, the Board grants TDIU. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.