Citation Nr: 21077144 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-48 762 DATE: December 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 2001 to October 2002, from April 2009 to June 2009, and from October 2011 to April 2012. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in January 2021. Entitlement to a TDIU is granted. The Veteran contends that his combination of service-connected disabilities (panic disorder, back disorder, bilateral lower extremity radiculopathy, and shin splints) has impeded and hindered his ability to work since January 2016. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). For the period on appeal, the Veteran has been in receipt of the following disability ratings: a 70 percent rating for panic disorder; a 20 percent rating for degenerative joint disease of the lumbosacral spine; a 10 percent rating for radiculopathy of the left lower extremity associated with degenerative joint disease of the lumbosacral spine; a 10 percent rating for radiculopathy of the right lower extremity associated with degenerative joint disease of the lumbosacral spine; a 0 percent rating for left shin splints; and a 0 percent rating for right shin splints. His total combined disability rating is 80 percent for the entire period on appeal. Therefore, the Veteran meets the schedular criteria pursuant to 38 C.F.R. § 4.16. The Veteran received an increased rating for his panic disorder in 2016 in which a VA examination was conducted. The examiner noted the Veteran's attributable symptoms including panic attacks roughly 10 times per week in which he could not function; feeling anxious, fearful, and constantly expecting disaster; and the inability to shop for necessities alone, work around others, sit in waiting rooms, vacation with his children, or leave his home. The VA examiner described the Veteran's social and occupational impairments as having "deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood." The Veteran stated that he has lost multiple jobs as a result of his service-connected disabilities and has had scattered employment since 2013. The VA examiner further concluded that the Veteran's service-connected psychological disabilities "render him non-functional in even primitive ways" and "his anxiety virtually dominates him." In a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in November 2017, the Veteran reported that he was last employed as a truck driver from July 2016 to November 2017, working 35 hours per week. He reported that he lost 30 days from illness in which he was hospitalized for his service-connected disabilities. The Veteran is receiving Social Security Administration (SSA) benefits, effective September 2018, based on his disabilities including panic disorder and back pain. The SSA medical treatment records and disability determinations are part of the record. In determining SSA benefits, the file notes that the Veteran missed a few appointments due to anxiety driving through town and inability to sit in a waiting room. The Veteran stated he does not socialize, spend time with others nor shop to avoid panic attacks. The examiner noted that the Veteran does not follow written nor verbal instructions well due to difficulty concentrating on tasks. The Veteran reported depressive moods and lack of motivation caused by his limitations. The medical opinion stated that the Veteran could no longer work a 40-hour week concluding that "given the nature and severity of his current mental health issues he will have [] problems in the future and will struggle to consistently carry out future job tasks." Additionally, the Veteran will "work slower than others due to his issues of focus and motivation and he will have problems completing multi-step job tasks." In August 2018, a VA examiner conducted a Disability Benefits Questionnaire regarding the Veteran's service-connected back disability. The Veteran stated that during flare-ups "he has to stop what he is doing," but the examination did not occur during a flare-up. The VA examiner reported additional factors contributing to the Veteran's back disability including: less movement than normal due to ankylosis; adhesions; weakened movement due to muscle or peripheral nerve injury; disturbance of locomotion; and interference with sitting and standing. The VA examiner stated that the Veteran's thoracolumbar spine (back) condition impacted his ability to work due to limited walking, sitting, standing, lifting, bending, and carrying. Ultimately, the VA examiner concluded that the "Veteran has no functional deficits that prevent his seeking and maintaining substantially gainful employment of a sedentary nature." No further rationale was given regarding potential "sedentary" employment. In August 2018, a VA examiner conducted a Disability Benefits Questionnaire regarding the Veteran's service-connected bilateral shin splints. The VA examiner concluded that the Veteran's bilateral shin splits did not impact his ability to perform any type of occupational task, and the Veteran had no additional limitations as a result. The August 2018 VA examiner completed a Disability Benefits Questionnaire regarding the Veteran's mental disorders. The VA examiner checked a box stating the Veteran has "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." The examiner noted that the Veteran had anxiety, panic attacks more than once a week, chronic sleep impairment, and difficulty adapting to stressful circumstances such as a worklike setting. The Veteran reported driving a cement mixer truck for a little over a year but was fired after he "went off on" a dispatcher for being disrespectful. The Veteran stated that he was able to perform in this position because he did not have to be around people. The Veteran explained that he remained unemployed because job interviews trigger his panic symptoms. The VA examiner concluded that the Veteran's panic disorder "does not preclude his ability to gain or maintain employment," but that the Veteran would "function best in an employment setting that involved minimal interpersonal interaction" as a result of his anxiety in social settings. In January 2020, the Veteran submitted VA Form 28-1900, Application for Vocational Rehabilitation for Claimants with Service-connected Disabilities. In March 2020, the Veteran was granted benefits provided by the Vocational Rehabilitation and Employment (VR&E) program. A VA Form 28-1902b, Feasibility Determination Narrative, was used to assess the Veteran. The Veteran self-reported that he had been working the last few years as a construction bidder until January 2020. The VA counselor determined that "achievement of vocational goal is currently reasonably feasible." In April 2020, a VA counselor in the VR&E program determined the Veteran had vocational impairment based on his service-connected disabilities. The counselor stated that the Veteran "cannot work in fields or positions that require physical demands such as standing, lifting, bending, crouching, or other physically related tasks." He also found that the Veteran lacked training or education for suitable employment as he is a certified motorcycle mechanic. Additionally, the Veteran reported "memory issues, communication issues, and problems interacting with others." As a result, the counselor concluded that "the [V]eteran has severe impairments, functional limitations and residual capacities" resulting from his service-connected disabilities which contribute in "substantial part to the [Veteran's] vocational impairment." The Veteran's prior work history and training show he is certified to repair motorcycles. The Veteran's most recent employment was as a truck driver, which is a job his stepfather secured for him. The employer reported the Veteran was terminated for insubordination and various policy violations. The Veteran, during his January 2021 hearing before the Board, stated that the job was "extremely excruciating" on his back. The Veteran testified to having a panic attack on the job and walked off when his boss laughed at him. Previously, the Veteran was employed as a certified Harley Davidson mechanic but was only able to work 4 hours per day due to back pain. Prior to the Veteran's deployment in 2011, he worked as a contractor for 7.5 years. His longest stint of employment since separation in 2012 was as truck driver for around one year. During the January 2021 hearing, the Veteran addressed his physical condition. The Veteran stated that he does not leave his home other than to watch his daughter play softball in which he remains in his truck. The Veteran reported pleasure from riding his motorcycle, but he had to sell it because of his back pain. The Veteran stated his physical pain and limitations causes him to feel depressed. Based on the evidence of record, the Board finds that entitlement to a TDIU is warranted. The symptoms documented on VA examinations, SSA medical examinations, and VA counselor reports, as associated with primarily the Veteran's service-connected back disability, include the inability to sit, stand, walk, bend, lift objects greater than 10 pounds, or focus on tasks. In addition, the Veteran's panic disorder prevents him from engaging in even the slightest social interaction outside of the house. Thus, in light of the Veteran's training as a motorcycle mechanic and extensive work history as a truck driver, which requires prolonged sitting and use of his lower extremities, and mechanic, which requires lifting among other physical demands and likely interactions with customers or coworkers, the evidence shows that his service-connected panic disorder, degenerative joint disease of the lumbosacral, and bilateral lower extremity radiculopathy impede his ability to obtain and maintain substantially gainful employment. In making this finding, the Board resolves reasonable doubt in the Veteran's favor despite potential employment as a construction bidder. The August 2018 VA examiner notes that the Veteran experienced occupational impairments as a result of his panic disorder but concluded that he could work alone without social interactions. The VA examiner further notes that the Veteran was unable to perform his normal job as a mechanic or truck driver due to pain and inability to sit for long periods or lift heavy objects but concluded the Veteran could seek gainful employment of a sedentary nature. However, the VA examiner did not elaborate on the term "sedentary" and how it applies to the Veteran's individual circumstances. Additionally, the VA examiner completed the Disability Questionnaire giving recommendations for each individual service-connected disability separately rather than considering the combination of all the Veteran's service-connected disabilities together. The April 2020 VA counselor from the VR&E program stated that the Veteran cannot work in a field requiring physical demands or even minimal stress situations. The VA counselor concluded that the Veteran has "severe impairments, functional limitations and residual capacities" as a result of his service-connected disabilities. Although SSA determinations are not binding on the Board, the Board finds that this is additional probative evidence. The SSA medical examiner concluded that the severity of the Veteran's mental health will consistently cause him to struggle and work slower preventing him from working a 40-hour week. In conclusion, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities for the period on appeal. Thus, in light of the Veteran's occupational background and the functional limitations described, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of the symptoms of his service-connected back, bilateral lower extremity radiculopathy, and panic disorder. Accordingly, the Board finds that entitlement to a TDIU is warranted for the period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Clevenger, Gordanna A. 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.