Citation Nr: 21070041 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-26 840 DATE: November 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran last worked in a full-time capacity in September 2008. The evidence of record is at least in approximate balance as to whether his service-connected degenerative disk disease of the lumbar spine (lumbar spine disability) prevented him from securing or following a substantially gainful occupation during the claim period. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19; Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1991 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of the Veteran's claims file currently resides with the Saint Petersburg, Florida RO. In December 2018, the Veteran and his fiancé, C.C., testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in April 2019, the Board found that a rating reduction of the Veteran's service-connected degenerative disk disease of the lumbar spine from 40 percent to 10 percent, effective May 1, 2013, was improper. Accordingly, the Board restored the Veteran's 40 percent rating. Lastly, the Board remanded the issue of entitlement to a TDIU. Subsequently, in May 2021, the Board again remanded the issue of entitlement to a TDIU. The case has once again returned to the Board for appellate review. TDIU 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 consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). However, VA may not consider 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. 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 employment is defined 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). Turning to the evidence of record, the Veteran has contended that his lumbar spine disability has prevented him from securing or following a substantially gainful occupation. See May 2011 VA Form 21-8940, Application for Increased Compensation Based on Unemployability. While the Veteran does not currently have one disability rated at 60 percent or more, his lumbar spine disability has been rated as 40 percent disabling for the entire claim period. Additionally, he has sufficient additional disability to bring his combined rating to 70 percent or more. Thus, the Veteran has satisfied the threshold requirements for consideration of entitlement to a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Next, regarding the Veteran's education, training, and occupational history, the record reflects that: (1) the Veteran has a high school education; (2) in service, his military occupational specialty was wheeled vehicle mechanic; (3) following service, he worked primarily as an automotive mechanic and was briefly employed by an automotive parts store. See December 2018 Hearing Tr. at 8-11; August 2011 VA Examination Report; August 2011 VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits; May 2011 VA Form 21-8940, Application for Increased Compensation Based on Unemployability; Department of Defense Form 214 received in March 2009. Moving beyond the Veteran's education, training, and occupational history, the record contains evidence indicative of the impact of the Veteran's service-connected lumbar spine disability on his ability to obtain and maintain substantially gainful employment. Specifically, in June 2021, a VA back conditions examiner indicated that the Veteran's lumbar spine disability caused difficulties with prolonged standing, walking, and repetitive bending. Additionally, the examiner remarked that the Veteran would have difficulty lifting objects heavier than 10 to 20 pounds. The examiner then stated that, during flare-ups, the Veteran's lumbar spine disability would interfere with his ability to stand or sit at a desk, or drive a vehicle for prolonged periods. Lastly, the examiner noted that the Veteran reported that he had difficulty riding a horse and taking care of his animals because of his lumbar spine disability. Separate from the June 2021 VA back conditions examination report, the Veteran stated that his lumbar spine disability caused intense pain and required him to use a cane to assist with ambulation. See January 2012 Statement. In August 2011, another VA examiner indicated that the Veteran's lumbar spine disability interfered with his ability to stand, walk, sit, or lay down for long periods. From this evidence of record, the Board finds that the Veteran primarily has training and experience in performing skilled, manual work in physically demanding settings. Specifically, his primary experience has been in mechanic positions that required him to occasionally lift considerable weight as well as stand, sit, or bend for extended periods. As the Veteran's lumbar spine disability has limited such functions, the Board finds that the evidence of record is at least in approximate balance as to whether the Veteran's lumbar spine disability has prevented him from securing or following a substantially gainful occupation. As such, entitlement to a TDIU is warranted in the instant case. See 38 C.F.R. §§ 3.102, 4.3, 4.16; see also Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.