Citation Nr: 21008563 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-06 938 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected lumbar spine, cervical spine, left shoulder strain, and posttraumatic stress disorder (PTSD) for the period July 1, 2013 to October 14, 2013, and December 1, 2013 to June 5, 2014 is granted. FINDING OF FACT From July 1, 2013 to October 14, 2013, and December 1, 2013 to June 5, 2014, the Veteran’s service-connected lumbar spine, cervical spine, left shoulder strain, and PTSD rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW From July 1, 2013 to October 14, 2013, and December 1, 2013 to June 5, 2014, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from October 1985 to April 1986 and from July 2010 to August 2011. He also had National Guard service. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the December 2018 decision, the Board characterized the issue as set forth above finding that as the Veteran was rated at 100 percent from March 15, 2013 to June 30, 2013, October 15, 2013 to November 30, 2013, and from July 6, 2014 to present, entitlement to a TDIU during these periods was moot. See 38 C.F.R. § 4.16(a). In that decision, the Board remanded the issue for further development. The Board finds substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU due to service-connected lumbar spine, cervical spine, left shoulder strain, and PTSD for the period July 1, 2013 to October 14, 2013, and December 1, 2013 to June 5, 2014 The Veteran is seeking entitlement to a TDIU. He has reported that his functional impairment due to his service-connected lumbar spine, cervical spine, left shoulder strain, and PTSD have rendered him unable to secure or follow a substantially gainful occupation. Again, the Board has found that the periods in question are July 1, 2013 to October 14, 2013, and December 1, 2013 to June 5, 2014. During the periods in question, the Veteran had one disability (PTSD) rated at least 40 percent and a combined rating due to PTSD, lumbar spine and cervical spine and left shoulder strain of at least 70 percent. In turn, the Veteran’s service-connected disabilities satisfy the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Therefore, the remaining inquiry is whether such disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. The Board notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). After reviewing the totality of the evidence, the Board finds that the evidence of record shows that the Veteran is precluded from substantially, gainful employment due to the physical functional limitations of his service-connected orthopedic disabilities, primarily the cervical spine, low back and left shoulder, in conjunction with the impairment caused by his service-connected PTSD. The evidence shows that the Veteran has not worked at any point during the periods on appeal and was last employed full time in April 2013. With respect to his physical disabilities, the May 2020 VA examiner found that the Veteran’s cervical spine, low back and left shoulder disabilities precluded the Veteran from functionally performing physical work activities. In this regard, the Veteran’s cervical spine disability precluded activities that required running, looking up (extension) for prolonged periods of time, full rotation of head/neck in either direction, or the lifting/carrying of heavy objects weighing greater than 25 pounds. Likewise, with respect to the low back, the Veteran could not perform activities that required running, jumping, repetitive bending forward, or the lifting/carrying of heavy objects weighing greater than 25 pounds. With respect to the left shoulder, the Veteran could not perform activities that required lifting the left arm over his head, holding his left arm extended over his head, driving long distances and lifting/carrying heavy objects greater than 15 pounds. However, the examiner found that the Veteran could still perform sedentary employment. Importantly, in Withers v. Wilkie, United States Court of Appeals for Veterans Claims (Court) took issue with the Board’s reliance on a VA examiner’s finding that a Veteran was capable of “sedentary” work. The Court noted that VA regulations do not define the term “sedentary” employment, including 38 C.F.R. § 4.16. The Court concluded that the Board’s reliance on medical and vocational examiners’ findings that a Veteran is capable of “sedentary” work to deny a TDIU claim was inadequate because the vague, undefined term failed to account for the Veteran’s specific educational and occupational background, which was inconsistent with 38 C.F.R. § 4.16. Accordingly, the Court held that when relying on examiners’ findings that a veteran is able to perform “sedentary” work to deny a TDIU claim, the Board must define that term considering the specific facts of each case, including a particular veteran’s work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139 (2018). In this case, the VA examiner did not really discuss the Veteran’s work history and experience when finding that he could perform sedentary work. Further, the examiner did not address the Veteran’s statements that he was unable to sit for long periods due to his physical disabilities. Here, the Veteran has a high school education and his work history primarily consists of physical employment, including machine technician, security guard and general laborer. Moreover, the Board also finds that the medical evidence shows that his PTSD would also affect his ability to perform sedentary employment. In this regard, the June 2020 VA examiner found that the Veteran’s PTSD would have resulted in occupational and social impairment with occasional decrease work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and conversation. He would have experienced the following occupational and social impairments: due to impaired sleep, he would feel tired during the day and could have reduced concentration affecting his reliability; due to reduced concentration and memory difficulty, instructions may have to be repeated or he may have had to write instructions down; due to anxiety, and irritability, he could experience interpersonal conflicts with co-workers and bosses. Further, depressed mood could have resulted in reduced motivation and interest affecting his reliability and productivity In sum, when considering the totality of the functional impairment caused by his service-connected lumbar spine, cervical spine, left shoulder strain, and PTSD as described by the evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, the Veteran would be precluded from substantially gainful employment due to his service-connected lumbar spine, cervical spine, left shoulder strain, and PTSD during the periods on appeal. In conclusion, when resolving all benefit of the doubt in the Veteran’s favor, the Board must conclude that the Veteran is unemployable due to his service-connected disabilities and, in turn, entitlement to TDIU is warranted from July 1, 2013 to October 14, 2013, and December 1, 2013 to June 5, 2014. 38 U.S.C. § 5107(b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.