Citation Nr: 21064454 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-46 575 DATE: October 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence demonstrates that the Veteran's service-connected disabilities preclude her from securing and following any 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. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1989 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in March 2019, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. The claim has now been returned to the Board for further appellate consideration. Following review of the claims file, the Board finds that there has been substantial compliance with the terms of its March 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Lastly, the Board notes that the Veteran submitted additional evidence subsequent to the issuance of the June 2020 Supplemental Statement of the Case readjudicating the claim on appeal. Although the Veteran has not specifically waived initial review of this newly-submitted evidence by the AOJ, such a waiver is presumed, as the Veteran submitted her substantive appeal after February 2, 2013. See, e.g., Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of, or subsequent to, the submission of a substantive appeal where such appeal is filed on or after February 2, 2013). As such, the Board may properly consider the evidence at this time. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided that at least one disability is ratable at 40 percent or more, where there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met, and the evaluator determines that the veteran's service-connected disabilities render her incapable of securing or maintaining substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease or disability. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the veteran can find employment generally, but rather, whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one non-economic. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. at 73. With respect to the non-economic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 7374. In this case, the Veteran is currently service-connected for cervical spine degenerative disk disease, rated as 20 percent disabling, mechanical low back pain, rated as 20 percent disabling, radiculopathy of the left upper extremity, rated as 20 percent disabling, radiculopathy of the right upper extremity, rated as 20 percent disabling, right knee disability, rated as 10 percent disabling, hypertension, rated as 10 percent disabling, left wrist carpal tunnel syndrome, rated as 10 percent disabling, right wrist carpal tunnel syndrome, rated as 10 percent disabling, left knee disability, rated as 10 percent disabling, left ventricular diastolic dysfunction, rated as 10 percent disabling, and onychomycosis of the toes and surgical scars of the right knees, each, rated noncompensable. For the purpose of one 40 percent disability, when considering that several disabilities result from a common etiology, the Veteran satisfies the schedular criteria for a TDIU. 38 C.F.R. §§ 3.340, 3.3.41, 4.16(a), 4.25. Thus, with the threshold requirement satisfied, the Board must determine whether the Veteran is unable to obtain or maintain gainful employment due to service-connected disability. The Veteran contends that her service-connected disabilities preclude her from being able to secure and maintain substantially gainful employment. In particular, she attributes her unemployability to the collective impact of her lumbar and cervical spine disabilities, radiculopathy of bilateral upper extremities, bilateral knee disabilities, and heart disorder, to include from the pain and discomfort caused by these disabilities. See VA Form 21-8940 dated May 6, 2015; see also VA Form 21-526EZ dated May 6, 2015. Specifically, the Veteran asserts that she is unable to perform the sitting, standing, and walking requirement of any job due to the severe back pain radiating to her left lower extremity and bilateral upper extremities, bilateral hand pain, and knee pain. The Veteran reported her highest level of education as two years of college and did not cite any additional education or training since she became too disabled to work. She further relayed that her last full-time job was as an administrative clerk, a position she held from May 1997 until April 28, 2015, at which time her service-connected disabilities rendered her unable to continue working. She asserts that she is now unable to perform any work, of either an active or a sedentary nature. See VA Form 21-4138 dated December 4, 2015. Turning to the medical evidence of record, April 2015 medical records from Saint Luke's Health System reflect that the Veteran was evaluated for bilateral leg pain, back pain, weakness, leg numbness, neck pain, arm pain and weakness and bilateral arm numbness. She was found to have multi-level disc bulging in the lumbar spine. July 2017 VA examination reports reflects that the Veteran had back pain, neck pain, radiculopathy, moderate paresthesias of the bilateral upper extremities with severe pain, mild numbness of the bilateral upper extremities, and limited cervical range of motion. The most recent VA examinations for the Veteran's service-connected disabilities reflect that only her cervical and lumbar spine disabilities, individually, would negatively impact her ability to work. In a December 2019 VA examination, a nurse practitioner evaluated the Veteran and concluded that the Veteran's back disability would "prevent work that requires hard physical labor" but not from "work requiring mild physical effort and/or sedentary [work] where frequent position changes and ergonomic accommodations are allowed." See VA examination dated December 20, 2019. The nurse practitioner also concluded that the Veteran's neck disability would similarly impact her ability to work, providing the same rationale as that used to support the opinion concerning the back disability. Pursuant to the directives of the Board's March 2019 remand, VA procured a medical opinion addressing the collective effect of all the Veteran's service-connected disorders on her employability. The nurse practitioner who provided the above findings provided further conclusions that the Veteran's service-connected disabilities, collectively, do not prohibit the Veteran from securing and/or maintaining substantially gainful employment. The clinician reasoned that the Veteran is capable of performing sedentary work or work requiring only mild physical activity, noting that the Veteran's left and right knee disabilities would only preclude her from jobs requiring "hard physical labor;" that her back and spine disorders would similarly prevent her from engaging in work of a physical nature; that her cardiac function is adequate; and that her service-connected carpal tunnel of the bilateral wrists presents as asymptomatic. The nurse practitioner documented her observation that the Veteran has a valid driver's license, reliable transportation, and the physical strength and/or coordination to drive, as well as the ability to walk independently. The Veteran's Social Security Administration (SSA) records show that she has been determined to be disabled for SSA purposes as of April 27, 2015. SSA decisions are not controlling but are pertinent to determining a veteran's ability to engage in substantially gainful employment. Martin v. Brown, 4 Vet. App. 136 (1993); Murincsak v. Derwinski, 2 Vet. App. 363, 36970 (1992). Here, the SSA determination was based at least in part on several service-connected disabilities, specifically the Veteran's bilateral carpel tunnel syndrome and radiculopathy of the upper extremities, lumbar spine and cervical spine disorders. In evaluating and weighing the lay and medical evidence of record, in considering the Veteran's education and work history, and in resolving all reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran is unable to find or maintain substantially gainful employment due to her service-connected disabilities. (Continued on the next page) In light of the above, the Board finds that despite the conclusions of the 2019 VA examiner, there is ample competent medical and lay evidence of record indicating that the Veteran's service-connected disabilities prevent her from performing even sedentary work. In this regard, the Veteran's cervical spine, low back, lower extremity radiculopathy, and knee disabilities cause significant functional and physical impairments, which limit her ability to perform tasks requiring fine motor skills or even minimal sitting, walking, or standing. Therefore, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities preclude her from securing or following any substantially gainful employment. Accordingly, the Board finds that resolving all reasonable doubt in favor of the Veteran, entitlement to a TDIU is warranted. The Veteran's appeal is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.