Citation Nr: 21008611 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 20-02 177 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s service-connected disabilities are lumbar radiculopathy of the right and left lower extremities (sciatic nerve) associated with lumbar strain, postoperative herniated disc L4-5 with degenerative changes (each rated as 40 percent disabling); and lumbar strain, postoperative herniated disc L4-5 with degenerative changes (rated as 20 percent disabling). The combined disability rating is 80 percent throughout the appeal period, and beginning October 16, 2018. 2. For the period on appeal, the Veteran’s service-connected disabilities have, as likely as not, precluded his ability to secure or follow substantially gainful employment consistent with his level of education and work history. CONCLUSION OF LAW 1. The criteria for entitlement to a TDIU are met for the period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran service on active duty from July 1962 to July 1966, and from March 1967 to January 1973. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a TDIU. The TDIU claim was inferred as part of the Veteran’s October 16, 2018 claim for increased ratings for his service-connected lumbar spine disability and associated lower extremity radiculopathy. The Veteran’s notice of disagreement (NOD) was received in January 2019. The RO issued the statement of the case (SOC) in December 2019, and the Veteran’s VA Form 9, substantive appeal was received in January 2020. In December 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. 1. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU because his service-connected disabilities have rendered him unable to secure and follow substantially gainful employment throughout the period on appeal. A TDIU may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability, including, for example, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; and, disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric. Id. Whether a TDIU is warranted is a legal and not medical determination, and must take into account all of the medical and lay evidence. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”; “neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). As set out above, the Veteran’s service-connected disability ratings meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) for the entire period on appeal based on having a combined disability rating of at least 70 percent as well as at least one disability ratable at 40 percent or more. Accordingly, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Veteran reports that his most recent work was as a truck driver, and that he owned his own truck for 10 years. See December 2020 Board hearing transcript, p. 8. In his January 2019 TDIU application, the Veteran reported that he last worked part-time, as a truck driver, in 2004. He left the job because of his disabilities, and has not since obtained employment. He attended four years of high school, and has not had any additional education or training before or after he became too disabled to work. A September 2013 letter from the Veteran’s daughter reflects that he was unable to complete household chores without having debilitating pain that would last for several days afterwards. He has pain when driving, and is unable to walk across his yard without having to take breaks to sit down. He has low energy and has to take naps during the day. A September 2013 buddy statement from C.W.S. reflects the Veteran’s difficulties driving four wheelers and motorcycles, and notes that he takes daily naps due to his pain. The Veteran had a VA peripheral nerves conditions examination in November 2018. The examiner noted lumbar radiculopathy of right and left lower extremities causing shooting pain since a surgery in 1996, with current symptoms including pain and tingling/numbness in both anterior thighs occurring intermittently when he “turns wrong.” The examiner noted normal gait and noted that the Veteran does not use assistive devices as a normal mode of locomotion. The examiner opined that the peripheral nerve condition does not impact the Veteran’s ability to work, and noted that the Veteran did not need to follow up with primary care for the leg conditions. The examiner provided no explanation for either finding. The examiner also addressed the back condition, noting current symptoms including difficulty lifting 5 points on the right which causes pain in the lumbar area; difficulty standing causing him to have to sit within 20 minutes; inability to sit for more than 22 minutes before having to shift his weight or stand; limited walking range of 75 feet before needing to sit; difficulty with bending and stooping; difficulty with driving for greater than 30 minutes before needing to stop and stand. The Veteran reported flare-ups occurring 3-4 times per year and lasting 1-2 weeks each. During flare-up, he is unable to move, and he experiences constant pain rated as 9/10. The examiner noted that the back condition impacts his ability to work, because he is unable to work for more than one hour before having to sit because of pain. A February 2019 VA history and physical note shows that the Veteran walks with a limping gait. The Veteran’s maximum walking range was 100 feet before he had to take a break, and he was inactive for the previous year, until July 2018. The veteran reported hand tremors that had an onset with his leg pain. The Veteran was noted as requiring his wife to steady his gait. The Veteran underwent lumbar decompression surgery of L2-3/4-5 in February 2019. He was released with instructions of no lifting over 5 pounds, no bending, pulling, stooping, straining, or prolonged sitting. A February 2019 VA physical therapy note shows that the Veteran walked about 50 feet without assistive device. He exhibited unsteady gait and required contact guard assist. He was fitted for a rolling walker. The treating therapist noted that sit to stand and standing pivot each required stand by assist. He used a handrail on the stairs, and was given a goal of being able to walk 350 feet with a walker. Another February 2019 VA physical therapy note shows that the Veteran’s wife assists with activities of daily living. A social worker note shows that he has canes, a walker, and arm crutches, but does not use assistive equipment for ambulation. He hoped to resume independence following the surgery. A May 2019 VA neurosurgery note shows that the Veteran reported improvement in his leg pain following the surgery. He still used a walker when going outside and when walking longer distances. He continued to experience back and hip pain. He was able to stand up independently and walk withed with a short stride with the walker. He was allowed to resume normal activity and increase his day-to-day activities gradually. An August 2019 VA neurosurgery note shows that while the Veteran initially saw improvement in his leg pain post-surgery, he recently began having increased low back pain, radiating into the buttocks and down the back of the thigh. The pain increases with walking as little as 100 feet. He walks in a stooped forward position, but he is able to slowly straighten up. He takes two doses of tramadol per day. At his December 2020 Board hearing, the Veteran reported that he is unable to work because of back pain. He is unable to stand, walk, or sit for any length of time, and has pain in his legs and hips which prevents him from sitting or laying down for long periods (three hours or more). He again reported last working as a dump truck driver in approximately 2004-2005, and quitting because of the taxing physical nature of the job which rendered him unable to operate trucks. He reported that after the back surgery in February 2019, he came out with pain in his hips and legs, as well as difficulty with bowel movement and voiding. His leg pain is now as bad as his back pain, and he continues to experience radiculopathy to the legs. Based on the foregoing, the weight of the evidence is in favor of finding that the Veteran’s service-connected disabilities have precluded him from securing and following substantially gainful employment throughout the period on appeal. The evidence against the claim is the November 2018 examiner’s finding that the left and right lower extremity disabilities do not preclude employment. However, the examiner did not provide any support in favor of this opinion. Moreover, the November 2018 examiner also determined that the back disability impacts the Veteran’s ability to work by preventing him from sitting for more than one hour at a time. The Veteran in fact quit his last job, as a truck driver, about 15 years before he filed the TDIU claim, due to the physical nature of the job. Since then, the record contains several accounts of his difficulty operating vehicles, and his difficulty sitting still for any extended period of time. He often uses assistive devices to walk, at times requires assistance for sit-to-stand, and now walks in a stooped position because of his back pain. The Veteran’s level of education and training limits the types of employment opportunities available to him, and more importantly, the record demonstrates that as a result of his back and leg pain, he would be unable to effectively fulfill the duties of any employment for which he is qualified. (Continued on the next page)   In light of the foregoing, the weight of the evidence is in favor of finding that the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. For these reasons, entitlement to a TDIU is warranted for the period on appeal. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.