Citation Nr: 21073048 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-30 760 DATE: December 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran is not unable to secure and follow a substantially gainful occupation due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability have not been met. 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 1983 to June 1986. This case was previously before the Board in November 2018, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a total disability rating based on individual unemployability (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." 38 C.F.R. §§ 3.340 (a)(1), 4.15. 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 at least one disability is ratable at 40 percent or more, and there is a 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 purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). The Veteran's TDIU claim was raised as part and parcel of his increased rating claim for his degenerative disc disease of the lumbosacral spine. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's increased rating claim for this issue was filed on August 8, 2013. From August 8, 2013 to September 19, 2016, the Veteran had a combined rating of 70 percent, with sleep apnea rated at 50 percent. From September 19, 2016, the Veteran has a combined rating of 90 percent with sleep apnea rated at 50 percent and bipolar 1 disorder rated at 70 percent. The schedular requirements for TDIU are therefore met for the entire period on appeal. On the Veteran's application for TDIU (VA Form 21-8940), submitted July 2020, the Veteran indicated that he last worked in November 2018. Prior to this position, he had worked several jobs for short periods of time, with stretches of unemployment between. He reported that he had four years of college education, with no other special training. He stated that he has not been substantially gainfully employed for more than 20 years and that his attempts to return to work have failed due to his service-connected disabilities. At the Veteran's June 2014 VA examination for the lumbar spine, the examiner stated that the Veteran's disability would prevent physical work and would limit his ability to stand or walk for extended periods. He received another VA examination in October 2019. The examiner reported that the Veteran "would be a more favorable candidate for sedentary employment" but did not note specific limitations. The Veteran's June 2014 VA examination for sleep apnea indicated no employment impact. At the Veteran's November 2019 VA mental health examination, the examiner remarked that the Veteran's ability to retain instruction and sustain concentration is mildly impaired; his ability to respond appropriately to coworkers, supervisors or the public is moderately impaired; and his ability to respond appropriately to changes in the work setting is moderately impaired. No impact from the Veteran's peripheral neuropathy associated with his lumbar spine disability were noted on either examination. VA treatment records confirm that the Veteran has had multiple jobs during the appeal period, each for only a short period of time. The Veteran reported leaving jobs and having difficulty finding new work due to low blood sugar and pain from carpal tunnel syndrome. Neither the Veteran's diabetes nor carpal tunnel syndrome are service-connected. The Board acknowledges that the Veteran's service-connected disabilities impact his ability to function adequately in the workplace. However, the evidence of record does not show that those disabilities alone prevent him from securing and following substantially gainful employment. Despite examiners' reports that the Veteran's lumbar spine disability and bipolar disorder affect his ability to perform physical tasks and his ability to concentrate and respond appropriately in the workplace, the evidence of record does not show that either of these disabilities have had an actual impact on the Veteran's ability to work. He has not noted these disabilities when asked about his difficulty finding or maintaining employment, stating instead that it is due to his carpal tunnel or other disabilities. With regard to the job the Veteran held at Burger King in 2018, the Veteran reported that he had no trouble with standing for his shifts. He left the job due to trouble with low blood sugar and lack of accommodations for that symptom. Accordingly, the Board finds that the Veteran is not unable to secure and follow a substantially gainful occupation due solely to his service-connected disabilities. TDIU is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.