Citation Nr: 21006819 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-44 287 DATE: February 5, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDING OF FACT Resolving all doubts in favor of the Veteran, his service-connected disabilities preclude him from performing gainful employment for which his education and occupational experiences otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army National Guard with a period of active duty training from July 2006 to October 2006. He also had a period of active duty service from August 2010 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. This matter was previously before the Board in July 2018 but was remanded for further development of his claim. In a May 2020 supplemental statement of the case (SSOC), his TDIU claim was denied. This matter is again before the Board for adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). 1. TDIU The Veteran contends that he is unable to work due to his service-connected low back disability. See April 2018 Hearing Transcript. The Board notes that the issue of entitlement to an TDIU was raised by the record and as part of the Veteran’s increased rating claim for his lumbar spine disability. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16 (a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Here, the Veteran is currently service connected for a lumbar spine disability, gastritis, radiculopathy of the lower extremity, hypertension, and a right achilles disability. The Veteran’s lumbar spine disability was assigned a 40 percent evaluation effective on July 18, 2019. He also has sufficient additional disabilities bringing his combined rating to 70 percent from July 18, 2019. Prior to July 18, 2019, his service-connected disabilities did not meet the criteria for consideration of TDIU under 4.16(a). Accordingly, since July 18, 2019 he does meet the initial rating criteria for consideration for TDIU. After review of the evidence, the Board will resolve any doubt in the Veteran’s favor and find that he is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. Aside from his Army National Guard drill training, a review of the evidence indicates his military occupational specialty during his period of active duty service was as an infantryman. A review of a June 2016 VA treatment record further notes that he last worked in construction a few months prior to that VA treatment appointment. Regarding the Veteran’s education, his military personnel file indicates that he graduated from a university in March 2003, but it is unclear what area he received his degree in. Based on the foregoing, the Board finds that he has a very narrow work history with no experience in sedentary or clerical positions regardless of his college education. The Veteran’s claims file further contains conflicting medical evidence regarding the impact of his disabilities on his ability to work. Medical evidence against his TDIU claim consist of a January 2012 and December 2012 VA examination which indicates that his lumbar spine disability did not impact his ability to work. The January 2012 VA examination also indicated that his dyslipidemia, hypertension, gastritis, and achilles enthesopathy were well controlled and did not cause any functional limitation. A November 2014 VA examination further indicated that his achilles enthesopathy did not impact his ability to work. Medical evidence in support of his claim consist of a May 2019 VA examination which noted that the Veteran’s service-connected gastritis disability affects his ability to work as his heartburn with accompanying symptoms are present most of the time and makes him uncomfortable. The VA examiner stated that he is in pain all day since the symptoms are only partially relieved by medications. A July 2019 VA examiner further noted that his service-connected lumbar spine disability affects his ability to work. The VA examiner stated the Veteran’s back disability limits his ability to engage in prolonged walking, standing, pushing, pulling, bending, lifting, carrying. He stated these limitations could impact physical work but not sedentary. In an April 2018 Board hearing, the Veteran testified that he is unable to work due to his back disability and that he experiences back pain just from mowing his lawn. With consideration of the Veteran’s lay statements, the pertinent medical evidence, and his work history as an infantryman, the Board finds that the evidence is in equipoise regarding the question of whether he is unable to maintain substantially gainful employment due to his service-connected disabilities. While the Veteran has a college education, his work history of record only consists of serving as an infantryman in service and as a construction worker. As such, the limitations due to his lumbar spine disability and gastritis would not compatible with work as a construction worker or any other physically demanding occupations. Accordingly, the Board finds that the evidence establishes that the combination of his service-connected disabilities rendered him unemployable on July 18, 2019, the date he met the schedular criteria under 38 C.F.R. § 4.16(a). Therefore, in resolving any reasonable doubt in the Veteran’s favor, the Board finds since July 18, 2019, the criteria for TDUI have been met and the claim is granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.