Citation Nr: 21065900 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-08 276 dDATE: October 27, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran was rendered unable to obtain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to total disability based upon individual unemployability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to September 2002, with additional periods of Reserve duty. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran contends he is entitled to a TDIU due to his service-connected disabilities. The Veteran specifically mentions hands and neck. See June 2013 VA Form 21-8940 Veteran's Application for Increased Compensation Based Upon Unemployability. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, or if there are two or more disabilities, there shall be at least one 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). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him [or her] from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). "Substantially gainful employment" is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, in evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The word "substantially" suggests an intent to impart flexibility into a determination of a Veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361. As of June 19, 2013, the Veteran was service-connected for sleep apnea rated at 50 percent, migraines rated at 10 percent, ulnar radiculopathy, right upper extremity (dominant) rated at 30 percent, degenerative arthritis, C4-5 and IVDS rated at 20 percent, ulnar radiculopathy, left hand (nondominant) rated at 20 percent, left knee status post torn posterior cruciate ligament rated at 10 percent, and several disorders rated non-compensable. The Veteran's service-connected disabilities satisfy the schedular criteria set forth in 38C.F.R. §4.16(a). The Veteran's occupational history has primarily consisted of working as a chief medical trainer. See VA Form 21-8940. In August 2013, the Veteran underwent a VA examination for his hand/fingers, and neck. The Veteran reported constant numbness in the hands and fingers, and daily constant neck pain. The examiner noted, "The pain from this condition makes it difficult for the veteran to perform physical activity when the fingers are used repetitively over time." Regarding the hand and finger condition, the examiner noted that the Veteran can perform light physical activity. The examiner stated the Veteran's neck condition affects his ability to work in that he can lift less than 10 pounds, walk 20 mins at one time, 2 hours during 8-hour day, sit/stand 20 mins at one time, and sit/stand 2 hours in 8 hours. In April 2019, the Veteran underwent VA examinations for his peripheral nerves, elbow and forearm, headaches, knee and lower leg, feet, neck, and shoulder and arm conditions. Notably, the examiner stated the Veteran's shoulder condition impacts his ability to perform occupational tasks because he is unable to raise the left arm above chest level. At the VA examination of the neck, it was noted that the Veteran has difficulty turning his head due to his neck condition. Lastly, at the VA examination for migraines, the examiner noted that the Veteran has very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, and that the Veteran has three headaches per month that causes him to not be able to function in brightly lit or noisy environments. Pursuant to the October 2019 Board remand, the issue was referred to an occupational specialist to evaluate the effect of the service-connected disabilities on the Veteran's employability. The VA examiner noted physical impairments that limit the Veteran's abilities to lift and carry no more than 10 to 20 pounds on a continual basis, and ultimately concluded that the Veteran is not unemployable by virtue of his service-connected disabilities. The rationale is that the Veteran is suited to participate in a wide variety of sedentary occupations. See February 2020 VA examination. The Board takes this conclusion into consideration; however, it is significant that the examiner recognized the Veteran's employment history of a medic and subsequently a medical trainer represents a sedentary to medium level of work. The examiner's conclusion seems to relegate the Veteran to only sedentary work, which is not consistent with his occupational experience. Further, the examiner stated that the Veteran's migraine headaches do not cause any occupational impairment. This is in direct contrast to the April 2019 VA examiner, who noted constant head pain, and concomitant nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision during an attack of migraine. That examiner found that the Veteran's headache condition directly impacts his ability to work. Upon review of the foregoing evidence and in consideration of the Veteran's lay statements and treatment records, the Board finds that the Veteran's service-connected disabilities prevent the Veteran from securing and following substantially gainful employment. As evidenced by the August 2013, April 2019, and February 2020 VA examiners, the Veteran lacks the physical capacity to perform basic job functions that may be required by his previous employment as a medic and medical trainer. Sedentary employment is outside the Veteran's relevant work history and will not be considered as an alternative path to employment. Any future job would likely require periods of standing, walking, turning the head, or raising the left arm, which would cause significant pain to the Veteran. In consideration of the above, the Veteran's claim seeking entitlement to a TDIU is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.