Citation Nr: 21068337 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-37 881 DATE: November 10, 2021 ORDER A total disability rating based on individual unemployability based on service-connected disabilities (TDIU) is granted. FINDING OF FACT For the period of appeal, the Veteran's disabilities met the schedular criteria for consideration of a TDIU and precluded from substantial and 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, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1970 to January 1974. In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board previously considered this appeal in January 2019 and August 2020. In August 2020, the Board remanded the issue to schedule the Veteran for a VA examination to identify all limitations and functional impairment caused by each of the Veteran's service-connected disabilities and to send the Veteran a VA Form 21-8940. In August 2020 the Veteran was sent a VA Form 21-8940 and in February 2021 and March 2021, the Veteran was afforded VA examinations to evaluate the occupational and functional impacts of his service-connected disabilities. Therefore, the Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU. Total disability meriting a 100 percent schedular rating exists "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. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability nonetheless may be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For purposes of determining whether these threshold minimum rating requirements are met, disabilities affecting both upper or lower extremities or stemming from common etiology or single accident are considered as one, collective disability. "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. §§ 4.16 (a), 4.18. In this case, the Veteran's service-connected disabilities consist of bilateral hearing loss (0 percent from February 4, 1975; 40 percent from July 27, 2012); arthritis lumbar spine (0 percent from February 4, 1975; 20 percent from July 27, 2012); arthritis third finger, left hand (0 percent from February 4, 1975; 10 percent from July 27, 2012); tinnitus (10 percent from July 27, 2012); left lower extremity radiculopathy associated with arthritis lumbar spine (10 percent from July 27, 2012). His combined rating has been 70 percent or greater since July 27, 2012. Thus, the percentage requirements of § 4.16(a) are met. Resolution of the appeal of this claim therefore turns on whether the service-connected disabilities precluded the Veteran from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits him to earn a "living wage") prior to September 1, 2016. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board finds that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his level of education and prior work experience and training. Regarding the Veteran's employment history, in an August 2013 VA examination for his back disability, the Veteran reported that after separation from active duty he went to mechanic school for three years. Then he worked as an automotive mechanic for less than a year, rebuilding engines. He reported that back pain limited strenuous activities. The Veteran reported that after that he drove a truck for one year, then went into construction of fences for about a year and a half. Then the Veteran helped a farmer drive his plow tractor off and on for four to five years. Then he helped his uncle in commercial fishing for one year, then back to truck driving for about a year and a half. Currently, the Veteran is not working. In August 2013, a VA examiner noted that the Veteran is independent with self-care, driving, and house chores. The VA examiner described the Veteran's functional impact as pain with bending over, standing for prolonged periods, and walking distances. Additionally, in August 2013, the Veteran underwent a VA examination for hearing loss and tinnitus. The VA examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life and his ability to work as the Veteran reported he cannot hear out of his right ear. At his August 2018 Board hearing, the Veteran testified that his hearing loss impairs his ability to work. The Veteran stated that, "[he] was a mechanic, and with certain things, you don't hear what's going on with the engine, you can't fix it, so you lose interest in what you're doing, because you don't know." In December 2019, a VA audio examination found that the Veteran's hearing loss impacts the ordinary conditions of daily life, including ability to work. In a December 2019 VA examination for the Veteran's back disability, the VA examiner noted the Veteran's functional impact included not being able to kneel, crouch when bending both legs and spine, stoop when bending spine at the waist, or crawl frequently. He added that the Veteran is able do light desk work or sedentary work without any specific restriction. In February 2021, the Veteran had a VA peripheral nerves condition, back and hand examinations. The VA examiner opined that the Veteran's left lower extremity radiculopathy, back and left hand, third finger arthritis, all impact his ability to work. The VA examiner reported that the Veteran is unable to stand or use his right hand for a long period of time, has deceased range of motion in his back, and is unable to grip a steering wheel for an extended period of time. The VA examiner opined that the Veteran's disabilities caused him to miss 0-1 week of work time in the last 12 months. Additionally, in February 2021, the Veteran was provided an individual unemployability statement and the VA examiner opined that the Veteran was unable to perform sedentary work. In March 2021, the Veteran had a VA hearing loss examination and the VA examiner opined that the Veteran's hearing loss impacts his ability to work. In May 2021, the Veteran was provided another individual unemployability statement and the VA examiner opined that the Veteran was able to perform sedentary work but provided no reasoning for their opinion. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. In sum, there is probative evidence that establishes that the Veteran's service-connected disabilities cause significant occupational impairment. Specifically, the Veteran's most recent VA examinations in February and March 2021 concluded that his service-connected disabilities impact his ability to work. Moreover the Veteran testified at the August 2018 Board hearing that he can no longer perform the functions of his job because of his hearing loss disability. As such, the Board finds that the evidence indicates that the Veteran's service-connected disabilities prevented him from obtaining and maintaining employment. The Board notes that a May 2021 VA individual unemployability statement reported that the Veteran was able to perform sedentary work. The Board has considered the Veteran's May 2021 VA examination TDIU opinion but affords the examiner's opinion low probative value as the examiner did not provide any rationale or reasoning for their conclusion. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). (Continued on the next page) There is no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board notes that the above medical opinions are all in relation to specific disabilities, and no opinion has been obtained that considers the Veteran's overall disability picture. As such, a medical opinion could be obtained considers the Veteran's complete disability picture. However, under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Accordingly, on this record, affording the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities prevented him from engaging in any substantially gainful employment. Thus, entitlement to a TDIU is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.