Citation Nr: 21076276 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-06 735A DATE: December 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 15, 2019 is granted. FINDING OF FACT Prior to August 15, 2019, the Veteran's service-connected disabilities preclude him from obtaining and maintaining gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to August 15, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to June 1977 in the U.S. Army. This matter comes before the Board of Veterans' Appeals (Board) from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a March 2021 decision, the Board adjudicated the Veteran's claims for service connection for a right hip condition, left hip condition, left knee condition, and right ear hearing loss, and his claims for an increased rating for chronic low back strain, right and left lower extremity radiculopathy, and left ear hearing loss. The issue of entitlement to a TDIU was also on appeal at that time as part and parcel to the Veteran's increased rating claim for his service-connected back disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, this issue was not included in the March 2021 decision, and so the Board is issuing this supplemental decision. In an October 2020 rating decision, the RO granted entitlement to a TDIU effective August 15, 2019. However, as the Veteran's increased rating claim has been pending since January 2013, the issue of entitlement to a TDIU prior to August 15, 2019 is still before the Board. Accordingly, the Board will address whether entitlement to a TDIU is warranted prior to August 15, 2019. TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. A TDIU 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 because of a single service-connected disability ratable at 60 percent or more, or because 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). During the period on appeal, the Veteran has been service-connected for depressive disorder (50 percent), chronic low back strain and lumbar spine degenerative joint disease with invertebral disc syndrome (20 percent), left lower extremity radiculopathy (20 percent), right lower extremity radiculopathy (10 percent), tinnitus (10 percent), and left ear hearing loss (noncompensable). The Veteran's combined rating has been 80 percent since January 11, 2013. Therefore, he meets the schedular criteria for a TDIU. The central inquiry is determining whether a TDIU is warranted 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19. Regarding the Veteran's education, the record shows that he completed high school and attended some college. See November 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He last worked in 2005 as a forklift operator at a warehouse. Id. The Veteran reported that he left his job due to back pain. In April 2008 the Social Security Administration (SSA) found the Veteran has been disabled since 2005 due to his back disability. Regarding occupational and functional impairment due to service-connected disabilities, an October 2012 VA examiner noted that the Veteran's back disability impacts his ability to work because temporary work restrictions should include avoidance of heavy lifting, twisting motions, prolonged sitting or standing, and activities that involve heavy vibration. Additionally, the examiner noted that the Veteran would benefit from rest periods, including the opportunity to lie down during such breaks and use of pain medication and muscle relaxants can affect dexterity and alertness. In August 2019, a VA examiner stated that the Veteran's back disability would impact his ability to work because he originally left the work force due to his back pain. In October 2013, a VA examiner also noted that the Veteran's hearing loss and tinnitus impacts his ability to work because he must often ask people to repeat themselves, he gets headaches when he is in crowds, and he has trouble sleeping and concentrating. An August 2019 VA examiner also noted that the Veteran's hearing loss and tinnitus impacts his ability to work due to trouble hearing, difficulty hearing on the phone, and trouble focusing. In April 2016, a private physician found that due to the Veteran's service-connected depressive disorder would cause the Veteran to miss 3 days or more per month of work and leave early from the workplace 3 or more days per month. Additionally, the private physician noted that the Veteran would not stay focused for at least 7 of 8-hour workday and more than once per month he would respond in an angry manner but would not actually become violent. The private physician found that the Veteran cannot sustain the stress of a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. Based on the foregoing, the Board finds that entitlement to a TDIU is warranted effective January 11, 2013. Resolving reasonable doubt in the Veteran's favor, the Board finds that throughout the period on appeal, his service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment consistent with his education and work experience. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.