Citation Nr: 21076729 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-27 558 DATE: December 27, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1998 to November 2002. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2019. A copy of the transcript is of record. This case was most recently before the Board in May 2021, when the issue of entitlement to a TDIU was found to be reasonably raised by the record and remanded for additional development. Rice v. Shinseki, 22 Vet. App. 447 (2009). An October 2021 supplemental statement of the case was most recently issued, and the claim is once again before the Board. 1. Entitlement to a TDIU. A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Here, service connection is currently in effect for unspecified anxiety disorder with sleep wake disorder, rated 70 percent disabling; lumbosacral strain with degenerative arthritis, currently rated as 40 percent disabling; degenerative joint disease of the right knee, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; a deviated nasal septum with nasal alar collapse of the right side, rated as 10 percent disabling; right ilio-inguinal nerve entrapment induced neuropathy, rated as 10 percent disabling; left lower extremity radiculopathy of the sciatic nerve, currently rated as 20 percent disabling (until December 31, 2021); right lower extremity radiculopathy of the sciatic nerve, currently rated as 20 percent disabling (until December 31, 2021); an inguinal hernia, rated as noncompensable; residual scar of the right knee, rated as noncompensable; and for a residual scar of an inguinal hernia, rated as noncompensable. The Veteran has a combined 80 percent disability rating from July 10, 2017, and a combined 90 percent disability rating from August 17, 2021, satisfying the schedular requirements for TDIU. Thus, the question is whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. In a December 2021 Application for Increased Compensation based on Unemployability, VA Form 21-8940, the Veteran reported that he became too disabled to work in 2015. He reported that he had four years of college education and had additional licenses. The Veteran reported that he was currently self-employed and that although it looks like he is making a ton of money, his most recent 2020 tax return showed he actually lost money. He reported negative income for the year. The Veteran noted that the forms were confusing for him to fill out and essentially did not give an accurate picture of his employment. Various examinations discuss the impact of his service-connected disabilities on his ability to work. For example, an October 2021 VA Mental Disorders Examination noted that the Veteran had to quit his job due to lack of sleep and then became self-employed. He reported that the stress is higher working on his own and he does not have the same resources he did working for a company. In an October 2021 private Mental Disorder Evaluation, it was noted that the Veteran had quit his job to become self-employed due to significant issues with sleep and additional symptoms. He reported that his pain and inability to sleep made it hard for him to work or focus at work. He reported being very irritable and having a hard time interacting with people in a work environment. He also reported that chronic pain affects his ability to sit, stand, move, and walk for extended periods of time. In a December 2020 Peripheral Nerves Conditions VA Examination, the examiner noted that employment requiring regular fixed daytime hours will be difficult for the Veteran to comply with. A December 2020 VA Spine Examination reflects that the Veteran would not be suitable in an occupation that required physical labor, frequent bending or twisting, heavy lifting, or prolonged walking. As noted above, the Veteran reports that he is self-employed and has negative income. Although the Veteran's exact income level from his self-employment is not clear from the record, the evidence nevertheless persuasively suggests that his earned annual income did not exceed the poverty threshold. In other words, the Board finds that the Veteran's self-employment constitutes work which is considered marginal employment and not substantially gainful employment for purposes of determining his entitlement to a TDIU. Moreover, the evaluations of the Veteran's service-connected disabilities support a finding that these disabilities preclude him from being able to maintain substantially gainful employment. The 70 percent evaluation for unspecified anxiety disorder with sleep wake disorder recognizes occupational and social impairment with deficiencies in most areas. The 40 percent evaluation for his lumbosacral strain with degenerative arthritis recognizes significant limitation of motion. The 10 percent evaluation for his right knee recognizes limitation of flexion, and his 10 percent evaluation for tinnitus recognizes the impact of his auditory disability. His 10 percent rating for his deviated nasal septum with nasal alar collapse of the right side recognizes obstruction of the nasal passage. His 10 percent rating for right ilio-inguinal nerve entrapment induced neuropathy, and separate 20 percent ratings for left lower extremity radiculopathy of the sciatic nerve, and right lower extremity radiculopathy of the sciatic nerve recognize his various neurological disabilities. The weight of the evidence indicates that the Veteran is unable to secure and maintain substantially gainful employment due to his service-connected disabilities. Additionally, the record does not indicate that the Veteran has any relevant training or education that would allow him to easily transition into substantially gainful employment. Accordingly, and resolving any reasonable doubt in the Veteran's favor, the Board finds that he has been precluded from securing and following gainful employment due to his service-connected disabilities, and a TDIU is warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.