Citation Nr: 21009023 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-24 109 DATE: February 18, 2021 ORDER From February 15, 2018, a total disability rating based upon individual unemployability (TDIU) is granted.   FINDING OF FACT From February 15, 2018, the Veteran’s combined service-connected disability picture has precluded him from securing and following substantially gainful employment. CONCLUSION OF LAW From February 15, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to September 1978. The case is on appeal from a November 2018 rating decision. In February 2021, the Veteran testified at a Board hearing. In September 2020, the Veteran’s representative submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   A TDIU. Legal Criteria A TDIU may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disability rated at 60 percent or higher; or two service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).   Background and Facts The Veteran filed increased ratings claims for his service-connected lumbar spine condition and right ankle condition in February 2018. The Veteran underwent a VA examination of his lumbar spine condition in May 2018. The examiner reported a diagnosis of degenerative lumbar arthritis of the spine with radiculopathy of the right lower extremity. The Veteran reported that prolonged sitting and standing increased his lower back pain. The examiner determined that the Veteran’s lumbar spine condition impacts his ability to work in that he would not recommend any occupation that involved repetitive bending or lifting. The Veteran underwent an VA examination concerning his right ankle condition in June 2018. The examiner noted a diagnosis of a right lateral collateral ligament sprain. At that time, the Veteran reported that prolonged standing and walking increase his right ankle pain and his right ankle is swollen at the end of the day. The examiner determined that the Veteran’s right ankle condition impacts his ability to work in that he would not recommend any occupation that involved prolonged standing or walking. In a July 2018 TDIU application, the Veteran reported the service-connected disabilities that prevent him from securing or following any substantially gainful occupation are his lumbar spine condition, right lower extremity radiculopathy, right ankle condition, hearing loss, and tinnitus. He reported January 1, 2014 as the date his disabilities affected his full-time employment and that he last worked full time in January 2002, when he was employed as telephone solicitor. With regard to employment for the last five years that he worked, the Veteran reported that during June 2013, he worked for a publishing company as a telephone solicitor eight hours per week, and from February 2016 to February 2017 he did clerical work for 20 hours per week at the National Indian Council on Aging. The Veteran reported further that he left his last job due to his disabilities. With regard to education, the Veteran reported completion of four years of high school. The Veteran also submitted a statement with his TDIU application form in which he commented that he although he was employed doing office work, he is no longer able to continue this type of work because of limitations with regard to sitting and walking. He stated sitting longer than half an hour caused pain which is alleviated by walking around. However, when he walks, it causes pain in his ankle and back. He also reported that his pain interferes with his ability to concentrate. The Veteran additionally noted that he has trouble hearing people speak to him on the phone. The Veteran underwent VA examinations of his service-connected conditions in September 2018. Concerning the Veteran’s lumbar spine condition, examiner reported a diagnosis of lumbar degenerative spine disease. At that time, the Veteran reported he constantly wears a back brace, he has limited range of motion, he experiences worsening pain walking or sitting for longer than 10 minutes, and he experiences pain that radiates down his lower right extremity. The examiner determined the Veteran’s lumbar spine condition affects his ability to work because he may not be able to participate in any employment that requires repetitive bending, lifting, or prolonged sitting or standing. However, the examiner concluded it is at least as likely as not that Veteran is capable of performing light work in a normal eight-hour workday. “Light work” is considered exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. Physical demand requirements for light work are in excess of those for sedentary work. Concerning the Veteran’s service-connected radiculopathy of the right lower extremity, the examiner reported that the Veteran has radiculopathy of the right sciatic nerve. The Veteran reported that he experiences pain radiating from his lower back into his right leg, in addition to numbness and tingling. The examiner determined the Veteran’s radiculopathy of the right sciatic nerve impacts his ability to work and stated that the Veteran may not be able to participate in employment that requires running, prolonged sitting, or prolonged standing. However, the examiner concluded it is at least as likely as not that the Veteran was capable of performing light work in a normal eight-hour workday. In regard to his service-connected right ankle condition, the examiner reported a diagnosis of right ankle anterior talofibular ligament and calcaneofibular ligament tears with arthritis. At that time, the Veteran reported he wears an ankle brace constantly for support and that prolonged standing or walking worsens his ankle pain. The examiner determined that the Veteran’s service-connected right condition impacts his ability to perform any type of occupational task in that he may not be able to function in an occupation that requires prolonged standing, walking, or running. Concerning employability, the examiner concluded it is at least as likely as not that the Veteran is capable of performing light work in a normal eight-hour workday. Concerning the Veteran’s service-connected hearing loss and tinnitus, the Veteran reported that that he has to ask people to repeat themselves. He also reported he has difficulty hearing in noisy environments and in group situations, and although he can hear, he cannot hear clearly. Concerning employment, the examiner conclude that with proper hearing and/or adaptive devices, the Veteran’s hearing loss causes no restrictions with regard to work. The evidence of record also reflects that the Veteran applied for VA vocational rehabilitation benefits in June 2017. He participated in an evaluation, entered into a plan of services in August 2017 but chose to discontinue services in September 2019. In September 2020, a private vocational consultant, who has a B.S. in Rehabilitation Services, a M.Ed. in Rehabilitation Counseling, and has been practicing in the field of vocational rehabilitation since 2010, conducted an evaluation of the Veteran. The consultant interviewed the Veteran and reviewed his claims file. She concluded that it is more likely than not that the Veteran is unable to secure and follow substantially gainful employment, including sedentary employment, since at least March 2018 due to his service-connected conditions. With regard to the Veteran’s education and work history, the vocational consultant stated the Veteran completed high school, and that he attempted to obtain a real estate license but does not have any additional degrees, licenses, or certifications. Concerning his employment history, the consultant noted the Veteran worked as an office clerk from 2016 through 2017, and she characterized the physical demand as light. She also noted that the Veteran worked as a loan officer from 2000 to 2007 and characterized the physical demand as sedentary. The vocational expert concluded that the Veteran is unable to perform the physical requirements of sedentary work as a result of his lumbar spine degenerative arthritis, right lower extremity radiculopathy, and right ankle conditions. She reasoned that even sedentary work requires standing and walking up to one third of the day, as well as sitting most of the time, and as such, the Veteran’s inability to perform prolonged standing, walking, and sitting due to his service-connected lumbar spine condition, right lower extremity radiculopathy, and right ankle condition is inconsistent with the physical demands of even sedentary employment. The vocational consultant also cited to several instances in the Veteran’s records reflecting those limitations. She also determined it is less likely than not that the Veteran would be able to satisfy, most, if not all of the basic requirements to sustain competitive employment at any exertional or skill level. In this regard, she noted that due to his service-connected lumbar spine condition, right lower extremity radiculopathy, and right ankle condition, he is precluded from sustaining adequate pace and productivity, due to his need to alternate positions to alleviate pain. She also noted the Veteran would have difficulty maintaining focus and concentration due to pain, which would reduce his pace and productivity beyond employer tolerances. The vocational consultant also commented upon the opinions offered by the examiner who provided VA examinations in September 2018. She disagreed with his determination that it is more likely than not that the Veteran is capable of light work. She stated based on her analysis, the Veteran is unable to maintain a sitting or standing position for longer than 30-45 minutes, which is inconsistent with work at any exertional level. Analysis Applying this evidence to the Ray factors, the Veteran is shown to have a high school education and that his work history includes occupations of loan officer and office clerk. The evidence of record reflects that the Veteran’s previous occupational tasks include sedentary to light work and that he ceased working in 2017. With regard to whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue, the Board finds that the Veteran has physical limitations as associated with his service-connected lumbar spine condition, right lower extremity radiculopathy, right lower extremity radiculopathy, and right ankle conditions. The Veteran’s ability to sit, stand, and walk for prolonged periods is limited. With regard to whether the Veteran has the mental ability to perform the perform the activities required by the occupation at issue, the Board finds that the evidence of record reflects that the Veteran’s ability to concentrate is limited by pain associated with his service-connected disabilities, and the need to alternate positions in order to alleviate his pain. As such, the Board finds the Veteran’s physical and mental limitations would more than likely preclude him from even sedentary work. In this regard, the Board finds the September 2020 vocational assessment persuasive. The rationale for the assessment is based upon accurate facts and sound reasoning, and the opinion is consistent with the other evidence of record, as referenced in the vocational expert’s evaluation. The Board acknowledges determination of the VA examiner who provided the September 2018 VA examinations that it is at least as likely as not that the Veteran is capable of performing light work in a normal eight-hour workday. However, it is unclear whether the examiner considered the cumulative effects of the Veteran’s service-connected disabilities, including their impact on his concentration and his overall pace and productivity, as noted in the evaluation provided by the private vocational expert’s evaluation. As such, the Board afforded VA examiner’s determination less weight. (Continued on the next page)   In addition, the Board notes that Veteran also meets the schedular requirements for a TDIU from February 15, 2018. From that date, the Veteran’s service-connected lumbar spine condition is rated 40 percent disabling and his combined disability rating is 70 percent disabling. As such, he meets the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, when reasonable doubt is resolved in favor of the Veteran, the Board finds that, from February 15, 2018, the Veteran was no longer employed, and his service-connected disability picture prevented him from securing or following a substantially gainful occupation consistent with his educational and occupational background. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, effective February 15, 2018, a TDIU is warranted. This is considered a full grant of the benefits sought on appeal as confirmed at the Board hearing. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.