Citation Nr: 21008477 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-29 618 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities, specifically his back disability and neck disability, render the Veteran unable to maintain any form of substantially gainful employment consistent with his education, training, and work history. CONCLUSION OF LAW The criteria for a TDIU are met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from March 1978 through February 2003 in the United States Air Force. For his meritorious service, the Veteran was awarded (among many other decorations) the Army Commendation Medal and the Afghanistan Campaign Medal. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a virtual hearing before the undersigned Acting Veterans Law Judge. A transcript of that testimony has been added to the file. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. The Veteran contends his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, during the appeal period, the Veteran has at least one disability rated at 40 percent or more as he is service-connected for sleep apnea at 50 percent. He also is in receipt of service connection, in relevant part, for a cervical spine disability (30 percent), low back disability (20 percent), tinnitus (10 percent), and GERD (10 percent). He meets the schedular requirements under § 4.16(a). In the present case, the Veteran has presented evidence that his service-connected disabilities, specifically his back disability and neck disability, preclude him from gainful employment. He filed his claim in November 2016. The Veteran’s VA form 21-8940 detailed the Veteran’s extensive career with the United States Air Force, in which he retired in 2003. The Veteran’s January 2017 VA examination reflects he was a scuba instructor from 2003 to 2005. The Veteran states that he has been unemployed since that time and states this is due to the impairment caused by his service-connected disabilities. He has a Bachelor of Science degree and master’s degree credentials. The Veteran’s VA treatment records detail his ongoing treatment for his service-connected disabilities. He has been consistently treated for his chronic back pain. His records detail conservative treatment options, topical analgesics, chiropractic treatment, physical therapy, and acupuncture. When those measures failed, the Veteran was put on narcotic medication for his pain. The Veteran also underwent VA examinations for his back disability and neck disability in January 2016 and again in January 2017. The VA examiners at both dates found the Veteran’s service-connected disabilities affected his ability to work. Regarding his back disability, the VA examiners concluded his back disability impacts his ability to work as he has difficulty with prolonged sitting, prolonged standing, and bending. The January 2017 VA examination noted his back disability impacts his occupational ability to lift moderate to heavy items and note the Veteran’s cognitive function is impaired due to his prescribed narcotic pain medication three times a day. The January 2017 VA examiner states the Veteran has occupational impairment due to his constant pain and noted the cognitive issues due to his narcotic pain medication. The Veteran provided his own statement in December 2017 detailing the extent of his disabilities. He provided details regarding his injuries in-service and the treatment for such injuries following his separation. The Veteran also detailed his pain management plan and the effects on his sleep, physical, and mental capabilities. The Veteran reported the medication he is on prevents him from being employed. The Veteran and his wife testified at his October 2020 hearing. His wife stated he has not worked for as long as they have been married, since December 2005. She reported his pain causes him to become combative, argumentative, and that he struggles to focus. She reported his narcotic pain medication make him unable to perform physical labor and he cannot work in his background and education due to his physical limitations. The Veteran testified that he has not worked since he left service, he reported he has significant limitations when sitting due to pain. In determining whether TDIU is warranted, a 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). Based on the Veteran’s hearing testimony, VA treatment records, and VA examinations, the Board concludes that a TDIU is warranted. Therefore, the Board finds that a TDIU based on the Veteran’s service-connected disabilities render him unable to secure and maintain substantial and gainful employment and that a TDIU is warranted for the entirety of the appeal period. The appeal is granted. J. Nichols Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.