Citation Nr: 21006405 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 08-14 238 DATE: February 4, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Army from December 1975 to December 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from several rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Court of Appeals for Veterans Claims (Court) vacated an August 2019 Board decision and remanded this claim for failure to provide an adequate statement of reasons or bases in an August 2019 denial of TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). The Veteran has a combined disability rating of 60 percent. All of his service-connected conditions arise from a single in-service parachute jumping accident. These conditions, therefore, are considered as one disability for purposes of TDIU; the Veteran meets the schedular criteria. 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(2). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Throughout the period at issue, the Veteran has reported progressively worsening mid-back and neck pain limiting range of motion in his neck and upper back as well as intermittent numbness and cramps in his arms that prevent him from obtaining and sustaining gainful employment. At an August 2010 VA examination, the examiner documented abnormally brisk reflexes in both upper extremities, muscle spasms and a decreased range of motion in his cervical and thoracic spine. While the examiner did not specify the Veteran’s exact range of motion, he concluded that the Veteran was limited in his ability to lift or carry significant weight due to these conditions and could not bend without pain. He noted that the Veteran’s pain required intermittent stoppage in his daily activities. Similarly, a March 2016 VA examination showed decreased cervical range of motion, especially in the Veteran’s lateral flexion and rotation. Although the Veteran reported additional functional loss with repetitive use over time, the examiner did not describe this additional functional loss in terms of range of motion. The examiner did conclude that the Veteran would not be able to safely perform physical work that involves turning his neck to the right or left side, such as driving. While none of the Veteran's service-connected disabilities are individually overwhelming, the combination of his neck, upper back and upper extremity disabilities prevent most forms of physical labor, even of a lighter type. Additionally, his neck and upper extremity disabilities would preclude employment in occupations that require repetitive movements of his arms and hands, even without weight-bearing. While the Veteran’s service-connected disabilities would not prevent him from sitting for extended periods of time, his service-connected neck and upper extremity disabilities would prohibit him from engaging in the kind of upper extremity maneuvers required for occupations such as driving or operating motorized machinery. As the March 2016 VA examiner noted, the Veteran would not be able to perform employment requiring him to turn his head to the right and left. His service-connected upper extremity disabilities would also rule out jobs that require repetitive hand movements and fine motor control, such as using hand tools, a keyboard, operating a computer mouse, significant writing or repeatedly moving his arms to operate a touch screen. Concerning the Veteran’s educational history, he obtained a GED while on active duty. After his discharge, he completed no more than three years of college courses in engineering and mechanical drafting in the early 1980s and did not obtain a degree. He completed one term of vocational training as a cabinet maker around 1986. As for his occupational history, the Veteran reports that until approximately 1996, he worked intermittently at odd jobs, mostly in boat repair. Since 1996, the Veteran contends that he has been unable to work due to his service-connected disabilities. The Veteran’s work history was characterized by the Social Security Administration as unskilled and consisted mainly of manufacturing jobs prior to 1990. In her July 2010 evaluation, the VA Vocational Rehabilitation and Education (VR&E) counselor noted that the Veteran had no specialized skills or training. Although the Veteran retains some vocational and occupational skills, his service-connected physical disabilities prevent him from sustaining gainful employment. For example, the Veteran has at least average mathematical skills, as evidenced by his college coursework in engineering and his performance in the July 2010 VA examination. At the July 2010 examination, the Veteran had intact memory, normal intelligence and was able to “readily” perform serial seven subtractions and answer all questions promptly and appropriately. But the effect of his neck and upper extremity disabilities would preclude him from using these mathematical skills in a work environment that required substantial writing, use of a computer or touchscreen, repetitive upper arm movements (such as scanning items) or manipulating a mouse. As for opinions, the Veteran has undergone numerous VA examinations regarding his neck and thoracic spine conditions, and the examiners’ opinions have run the gamut from a conclusion that the Veteran’s service-connected disabilities had no impact on his or her ability to work (for example, at the November 2013 VA examination) to concluding that the Veteran’s service-connected disabilities prevented him from doing any physical work (the March 2016 VA examination), work that requires turning his neck to the right or left side (the March 2016 VA examination) and that the Veteran’s pain requires intermittent stoppage in his daily activities (the August 2010 VA examination). The Board notes this conflicting evidence. However, this is ultimately a determination for the VA adjudicator, not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board notes the conclusions of various consultative examiners and disability determination specialists on behalf of the Social Security Administration (SSA) who concluded that the Veteran could perform work involving lifting up to 50 pounds was well as sitting and walking for up to six hours in an eight-hour workday. However, the examiners only considered the Veteran’s lower back condition in reaching this conclusion as is evident from the December 2010 consultative evaluation report and the descriptions of the Veteran’s impairment as low back pain. The SSA’s decision did not account for the Veteran’s service-connected cervical or thoracic disabilities, his bilateral neuralgia or his pain disorder and the effects those disabilities would have on his ability to obtain and maintain substantially gainful employment. Consequently, these opinions and conclusions which did not evaluate the effect of the Veteran’s service-connected disabilities are given no probative weight. In reviewing the evidence of record, the Board acknowledges that there is conflicting evidence concerning employability. However, considering the entire disability picture, including the Veteran’s past educational and occupational experience, the severity of his cervical and thoracic symptoms and their impact on his ability to perform physical labor, use his arms and hands and turn his head from side to side, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation. TDIU is granted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.