Citation Nr: 21077419 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-22 950A DATE: December 29, 2021 ORDER From December 2012, a total disability rating based on individual unemployability due to service-connected disabilities ("TDIU") is granted. FINDING OF FACT From December 2012, the probative evidence of record (including the findings of a December 2019 individual unemployment statement) indicate that the Veteran would not be able to perform physical labor due to his service-connected neck condition. The record also indicates that Veteran was unable to sustain sedentary employment due to his neck condition. CONCLUSION OF LAW From December 2012, the criteria have been met for a TDIU rating. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. It was originally before the Board on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA). This matter was before the Board in February 2019 and November 2020 and was remanded for further development. From December 2012, a TDIU rating is granted. Legal Criteria It is the established policy of VA that all Veterans who are unable to obtain and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility The Board received the Veteran's claim for a TDIU rating on December 31, 2012. At the time of the claim, the Veteran was rated at 40 percent for residuals of a shell fragment wound of the neck ("neck condition") and 50 percent for post-traumatic stress disorder (PTSD) and thus he meets the criteria for schedular TDIU eligibility for the stated period on appeal. 38 C.F.R. § 4.16(a). Factual Background The Veteran reported on his TDIU application that he was working as an emergency medical technician (EMT) from February 1986 to October 2010 and as a support technician from October 2010 to November 2012 until he had to resign due to his service-connected disabilities. The Veteran indicated on his 21-4192 form that he was reasonably accommodated to an office position due to his health condition. The Veteran reported in a December 2012 statement that his service-connected neck condition got worse when he did physical work or computer work. The Veteran testified at the Board hearing that he is unable to move his neck completely and has constant headaches due to his service-connected neck condition. A February 2017 medical treatment indicates that the Veteran's neck condition interferes with his ability to write, hold cups, use table utensils, and perform precision tasks with his hands. The Veteran reported that his neck condition causes daily headaches which are trigged by the static neck position. A December 2019 individual unemployment statement indicates that the Veteran would only be able to perform sedentary work due to his service-connected conditions. "Sedentary work" was described as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, and pull. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met. A December 2019 DBQ indicates that the Veteran's neck condition limits his ability to work because he cannot turn his head side to side or drive during a flare-up. A February 2021 DBQ indicates that the Veteran's PTSD symptoms causes occupational and social impairment with reduced reliability and productivity. The conducting physician opined that the Veteran's PTSD contributes to his inability to function socially. The physician opined that if the Veteran were working, his PTSD symptoms would compound his occupational problems. Analysis The Board finds that from December 2012, the Veteran was unable to obtain or sustain employment which would require him to do physical labor. This is consistent with the findings of the December 2019 individual unemployment statement indicating that the Veteran would only be able to perform sedentary work due to his service-connected conditions. Additionally, the Veteran indicated that he was moved from his EMT position to an office position due to his neck conditions. What remains for consideration is whether the Veteran can obtain sedentary employment. In a January 2020 decision, the Court noted that VA has not explicitly defined the meaning of "sedentary employment" and held that, until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018) at 11. This is of relevance here, given the reference by the VA examiner to the Veteran's capacity for "sedentary work." In this case, the Board envisions potential sedentary employment to encompass a wide variety of administrative, managerial, or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, walk for extended periods or engage in physical activity requiring heavy lifting. Here, the record indicates that the Veteran would not be able to sustain substantially gainful sedentary employment. The Veteran was provided a sedentary position as an IT specialist but was unable to sustain the position due to his neck pain and headaches as a result of his neck condition. Furthermore, the February 2021 DBQ indicates that the Veteran's PTSD symptoms would affect his ability to function socially and compound his occupational problems. Accordingly, the Board finds that the Veteran is unable to obtain or sustain substantially gainful sedentary employment during the period on appeal. As such, from December 2012, a TDIU rating is granted on a schedular basis. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.