Citation Nr: 21074233 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-26 842 DATE: December 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is GRANTED. FINDING OF FACT The Veteran's service-connected disabilities precluded him from securing and/or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from December 1985 to June 1986, and from May 2007 to September 2014. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. On July 29, 2016, the Veteran submitted a VA Form 32-526EZ. Thereby, the Veteran initiated an increased rating claim for the service connected depressive disorder, not otherwise specified (NOS). The Board notes that, when the issue of TDIU is raised by the record during the appeal of a claim for an increased rating, the issue of TDIU is considered part of the pending claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). A TDIU may be assigned 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. 38 C.F.R. § 4.16 (a). Entitlement to a total rating must be based on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In September 2016, the Veteran underwent multiple VA examinations, to include those that addressed the severity of shoulder and arm, peripheral neuropathy, diabetes mellitus, esophageal, and acquired psychiatric disorders. An examiner relayed that the Veteran's diagnosed Unspecified Depressive Disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran's score of 17 suggested moderately-severe depression. The Veteran reported difficulty with work, taking care of things at home, and difficulty getting along with other people. An examiner relayed that the Veteran's right hip osteoarthritis would impact any prolonged standing and walking in an occupational environment. An examiner relayed that the diagnosed left side radiculopathy associated with spondylosis would impact the Veteran's ability to lift and bend in the workplace. In October 2016, the Veteran underwent a VA examination that addressed the severity of thoracolumbar spine conditions. The examiner noted a diagnosis for lumbar spine spondylosis with intervertebral disc syndrome (IVDS). The examiner relayed that the supplied diagnosis resulted in an inability to lift and bend during the Veteran's flare-up episodes in the workplace. In November 2016, the Veteran submitted an VA Form 21-8940. Therein, the Veteran relayed that his service-connected acquired psychiatric disability, diabetes mellitus, left hip, and shoulder disabilities rendered him unable to pursue substantially gainful employment on and after July 1, 2016. In March 2017, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, "(d)ue to ... (service-connected disabilities) I am unable to secure suitably adequate employment." In August 2017, the Veteran's treatment records from the Salt Lake City VA Medical Clinic (VAMC) were associated with the claims file. Therein, a provider relayed that, "(The Veteran) suffers from a variety of chronic medical conditions including but not limited to Bipolar Disorder, Depression, Type 2 Diabetes Mellitus, Spinal Degenerative Disk Disease, and Sciatica. These conditions make it difficult for him to work on a consistent basis. . . . (The Veteran) suffers from chronic pain due to degenerative disc disease and sciatica. This makes it difficult for him to remain active or to hold jobs in which he must be active. He has exacerbations of pain with prolonged standing, bending, lifting, or stair climbing. He requires frequent treatments for his chronic pain including ongoing physical therapy and medication management. (The Veteran) also has type 2 diabetes mellitus which requires close monitoring and intensive insulin therapy." In September 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that he was hospitalized twice for suicidal ideationin 2016 and 2017. The Veteran relayed that he slept at least half a day. The Veteran testified that he took 12 or 13 medications each day for his service-connected disabilities. The Veteran's representative relayed that, "(the Veteran) wanted to work but due to his issues, he was not able to work. . . . I think they were looking more at his depression being the responsible part of why he could not work, when really it his issues with his feet, being able to walk, being able to lift those are the big issues." After review to the claims file, the Board observes that the Veteran has been service connected for the following disabilities during the claim period: depressive disorder, gastroesophageal reflux disease (GERD), diabetes mellitus, bilateral upper extremity peripheral neuropathy, right shoulder and left hip disabilities, bilateral lower extremity peripheral neuropathy, bilateral hip disabilities, and lumbar and kidney stone disabilities. Ultimately, the Board concludes that the Veteran's service-connected disabilities meet the schedular requirements for TDIU. See 38 C.F.R. § 4.16. Further, given the Veteran's difficulty in an occupational setting due to his service connected disability combined with the physical limitation cases by his diabetes mellitus and other service connected physical disabilities, the Board, affording the Veteran the benefit of the doubt, concludes that his limitations would preclude him from obtaining or maintaining gainful employment. Accordingly, entitlement to TDIU claim is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.