Citation Nr: 21066453 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-08 251 DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from February 13, 2013. FINDING OF FACT The Veteran filed a claim for entitlement to a TDIU on February 13, 2013, at which time his service-connected disabilities are shown to prevent him from securing or following a substantial gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met from February 13, 2013. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to a TDIU The Veteran contends that his service-connected disabilities have rendered him incapable of securing and following substantially gainful employment. Specifically, he has asserted that physical limitations resulting from his service-connected back and neck disability, as well as his depressive disorder, prevent him from performing the physical and mental acts required by his past vocations as a construction worker and corrections officer. The Veteran reported his service-connected disabilities caused him to stop working in 2008. 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 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." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total, and 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 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 such 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). For the period since February 13, 2013 the Veteran's total combined disability rating has been 80 percent, with his service-connected depressive disorder rated at 50 percent disabling. 38 C.F.R. §§ 4.25, 4.26. Consequently, the Veteran has satisfied the criteria for schedular TDIU consideration during this timeframe. In January 2013, the Veteran was afforded a VA examination to assess the nature and severity of his service-connected depressive disorder. The examiner stated the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran exhibited depressed mood, chronic sleep impairment, disturbances in motivation and mood, and suicidal ideation. The Veteran reported low appetite, irritability, isolation, and decreased energy and motivation. The Veteran had occasional thoughts of self-harm due to his chronic back and arm pain. The examiner stated in a December 2013 addendum opinion that the Veteran's depressive disorder may impair him from some endeavors, however, not all industrial endeavors. The Veteran underwent a general VA medical examination in March 2013. Following a review of the Veteran's electronic claims file, an in-person interview, and a complete physical examination, the VA examiner opined that the Veteran would have impairment in physical jobs which would require heavy lifting, prolonged walking, or repeated bending due to his service-connected physical disabilities. The examiner stated the Veteran would not be impaired for sedentary employment. While the January and March 2013 VA examiners' assessments of the Veteran's physical and mental limitations due to his service-connected disabilities are probative, the Board finds that the examiners' opinions regarding the Veteran's fitness to work in some industrial or sedentary environments are of little evidentiary value. It is clear from the March 2013 opinion that the Veteran lacks the residual functional capacity to perform physical work. Further, the Veteran has no experience performing sedentary work. While the January 2013 examiner opined the Veteran was capable of some type of work, this was only considering the impact of the Veteran's mental disability, rather than the combination of his physical and mental disabilities. A TDIU analysis must consider the individual veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see also Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994). Considering only the physical limitations assessed by the March 2013 VA examiner, the Veteran would be unable to perform physical labor consistent with his past employment experiences working in construction or as a corrections officer. Given the above, the Board concludes that the Veteran's service-connected disabilities have collectively resulted in an inability to secure and follow substantially gainful employment, consistent with his educational attainment and occupational experience. The Veteran's work history has been exclusively jobs requiring physical ability. The Veteran's pain in his back and neck causes significant physical impairment which prevents him from performing his former work as a construction worker or a corrections officer, or jobs of like duties requiring physical labor. He also experiences additional impairment from his service-connected depressive disorder, which is exacerbated by his physical disabilities. Resolving reasonable doubt in the Veteran's favor, his claim of entitlement to a TDIU is granted from February 13, 2013. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.