Citation Nr: 21063745 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-41 208 DATE: October 15, 2021 ORDER Entitlement to a total disability individual unemployability (TDIU) is granted. APPELLANT'S CONTENTIONS The appellant contends that the Veteran was entitled to a TDIU rating. While the Veteran's TDIU claim was pending, the Veteran passed away unfortunately. See August 2020 Death Certificate. Before the Veteran passed away, the Veteran stated that he was entitled to a TDIU because his service-connected posttraumatic stress disorder (PTSD), radiculopathy in his bilateral lower extremities, right shoulder disability, and lumbar spine disability prevented him from securing and maintaining a substantially gainful occupation. See VA 21-8940 dated September 2015 and October 2018. The Veteran explained that the chronic pain due to his service-connected disabilities caused him to stop working in May 2016. See August 2017 VA Form 9. The Veteran explained that he worked minimum wage jobs because his service-connected disabilities prevented him from getting better paying jobs. See October 2013 VA Treatment Record, see also, September 2015 VA 21-8940. The Veteran explained that he had to return to work as a delivery driver because he had to support his family. See October 2018 VA 21-8940. FINDING OF FACT The Veteran's service-connected PTSD, radiculopathy in his bilateral lower extremities, right shoulder disability, and lumbar spine disability prevented him from securing and maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to September 1995, from January 2003 to December 2004, from March 2005 to June 2006 and from July 2006 to April 2008. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his August 2017 VA Form 9. In July 2021, the Appellant was scheduled to appear at a hearing, but failed to appear. Unfortunately, the Veteran passed away in August 2020. The Appellant is the Veteran's surviving spouse, and she has been substituted for the Veteran in this appeal. Entitlement to a total disability individual unemployability (TDIU) is granted. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Moore v. Derwinski, 1 Vet. App. 356 (1991). However, VA may not take into account the individual veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employmentdefined as when a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the outset, the Board finds that the Veteran first met the schedular requirement for a TDIU on September 14, 2015. Specifically, his PTSD disability was rated at 50 percent with sufficient additional disabilities (degenerative arthritis of the lumbar spine, a right shoulder strain, limited flexion of the bilateral knees, radiculopathy of the bilateral lower extremities) bringing his combined disability rating to 90 percent. Regarding the Veteran's education, training, and occupational history, the record reflects that: (1) the Veteran had his high school diploma; (2) completed one year of college; (3) completed Occupational Safety and Health Administration (OSA) training to be a safety engineer; (4) and he worked as a meter reader, groundskeeper, and delivery driver. See September 2015 VA 21-8940 and May 2014 VA Treatment Records. Further, the Board notes that the Veteran never worked in a sedentary work environment. Moreover, the Veteran reported after retiring in 2011 that he worked 10 different jobs that resulted in short-term employment due to his service-connected disabilities. See February 2019 VA Medical Opinion. Moving beyond the Veteran's education, training, and occupational history, the record contains evidence indicative of the negative impact the Veteran's service-connected disabilities had on his ability to obtain and maintain substantially gainful employment. Specifically, an August 2016 VRE counselor stated that the Veteran's service-connected PTSD, GERD, and orthopedic disabilities limited his ability to bend, push, lift, pull, and engage in above shoulder work. See August 2016 VRE Counseling Narrative. Additionally, this examiner noted that the Veteran's mental alertness, memory, ability to work in crowded environment, and physical stamina were negatively impacted due to his service-connected disabilities. Id. This examiner also noted that the Veteran was unable to locate employment that would not aggravate the service-connected disabilities. Id. Further, the counselor noted that the Veteran had a serious employment handicap due to the number of disabling conditions, his current neuropsychiatric condition, the severity of his disabling conditions, his chronic pain, and lack of education/training for suitable employment. Id. Turning to the medical evidence of record, the Board also finds that the VA examiners of record found that the Veteran's service-connected disabilities negatively impacted his ability to work. Specifically, the September 2015 VA examiner stated that radiculopathy in his bilateral lower extremities and right shoulder disabilities created a functional impact on his ability to work due to pain and decreased movement. See September 2015 VA Medical Opinions. Additionally, the Veteran's VA treatment records showed that he had verbal altercations with his supervisor due to his irritability symptoms associated with his PTSD and that he had difficulty working with others. See VA Treatment Records dated June 2016 and September 2017. Further, the record shows that although the Veteran worked during the pendency of his TDIU claim, he did not receive income from employment exceeding the federal poverty threshold. See VA 21-4192 Request for Employment Information dated October 2015 and March 2019. Further, the Veteran explained that he had to work full time to support his family while his claiming was pending. See October 2018 VA 21-8940. Here, the Board finds that the above evidence demonstrates that the Veteran's occupational history consisted of physical labor in environments that required lifting, prolonged walking, and working with others. See VA 21-8940 dated September 2015 and October 2018 and VA Treatment Records dated August 2019 and November 2014. After reviewing the evidence, the Board finds that the Veteran's orthopedic disabilities, radiculopathy, and PTSD symptoms negatively impacted the Veteran's ability to work in physical labor environments. Further, as the Veteran had no history of sedentary employment, and otherwise lacked the type of educational training that tends to make such work feasible, the Board finds that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. In light of the whole record, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran was precluded from obtaining and maintaining substantially gainful employment. In making this determination, the Board has considered the Veteran's education, his primary employment history, and his level of disability due to his service-connected disabilities. As such, entitlement to a TDIU is warranted. See 38 C.F.R. § 4.16(a). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.