Citation Nr: 21010239 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 19-20 508 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The disability ratings assigned for the Veteran’s service-connected bilateral hearing loss, tinnitus, degenerative arthritis of the thoracolumbar spine with sacroiliac injury, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity satisfied the percentage requirements for schedular entitlement to a TDIU rating, effective June 20, 2018. 2. The Veteran’s service-connected disabilities prevented him from obtaining or maintaining substantially gainful employment, in view of his employment history and educational and vocational attainment. CONCLUSION OF LAW The criteria for a TDIU rating due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.1000, 3.1010, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1959 to March 1962. He died in February 2020. The Appellant is his surviving spouse and was substituted as the claimant for purposes of entitlement to any accrued benefits in July 2020. See 38 C.F.R. §§ 3.1000, 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision. In January 2021, the Appellant and two witnesses testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. Entitlement to a TDIU rating is granted. The evidence demonstrates that the Veteran’s service-connected bilateral hearing loss, tinnitus, degenerative arthritis of the thoracolumbar spine with sacroiliac injury, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity produced unemployability. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must consider “the effect of combinations of disability” under 38 C.F.R. § 4.15, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). As part of this ultimate determination, VA is required to obtain a medical examination or opinion only when “necessary to make a decision on the claim.” Id. (citing 38 U.S.C. § 5103A(d)(1)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). During the time period under review, the Veteran’s service-connected disabilities included the following: bilateral hearing loss rated as 40 percent disabling, tinnitus as 10 percent disabling, degenerative arthritis of the thoracolumbar spine with sacroiliac injury as 20 percent disabling, radiculopathy of the right lower extremity as 20 percent disabling, and radiculopathy of the left lower extremity as 20 percent disabling. His combined rating was 70 percent, as of June 20, 2018. Therefore, the criteria for schedular consideration of a TDIU rating are satisfied as of June 20, 2018. In the Veteran’s June 2018 Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran stated that he last worked full time in August 1995. His application states that he was employed as a telephone engineer on a full-time basis on August 31, 1995 and that he became too disabled to work at that time. He worked as a telephone engineer from October 1966 to August 1995. He attempted to obtain work after he became disabled, but was unsuccessful. He completed two years of college coursework and, before he became too disabled to work, he engaged in trainings related to telephone engineering. He did not obtain education or training after becoming too disabled to work. A January 2017 VA treatment note states that the Veteran has chronic low back pain that is a constant dull ache, which varies in intensity depending on activity level and has not improved since September 2016. The Veteran has limitations in standing, walking, stooping, and bending to perform leisure pursuits and activities of daily living. The Veteran’s VA treatment records demonstrate complaints of low back pain throughout. An August 2018 Hearing Loss and Tinnitus Disability Benefits Questionnaire indicates that the Veteran has difficulty hearing what others say as a result of his bilateral hearing loss and he has trouble sleeping because of his tinnitus. An August 2018 Peripheral Nerves Conditions (not including Diabetic Sensory-Motor Peripheral Neuropathy) Disability Benefits Questionnaire provides that the Veteran has peripheral neuropathy of the sensory sciatic nerve, moderate, bilateral lower extremities. His peripheral neuropathy limits his ability to engage in prolonged walking. An August 2018 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire shows that the Veteran reported his disability has worsened with tingling to his ankles. The examination report states that the Veteran’s lower back limits prolonged sitting and driving. The examiner provided that the Veteran last worked as an engineer for a phone company. His occupation primarily entailed sitting and travelling. He retired in 1995 and he indicated that he had difficulty with prolonged sitting and prolonged driving to travel long distances. The examiner opined that due to the Veteran’s lumbosacral condition, he should be able to perform sedentary type of employment where he is allowed to sit and stand at will, and is precluded from prolonged driving or travelling long distances. As the August 2018 examiner utilized the term “sedentary,” the Board must first define sedentary work. See Withers v. Wilkie, 30 Vet. App. 139, 147-49 (2018) (holding that if the Board relies on an examiner’s conclusion that a veteran is capable of sedentary work in denying a TDIU rating, it must determine the meaning of sedentary work “from the particulars” of the opinion and explain how it interprets the examiner’s use of the term). The Social Security Administration (SSA) defines sedentary work as work that involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. § 404.1567. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Id. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Id. The Board finds this definition persuasive, as SSA is charged with determining the capacity of an individual to satisfy the exertional requirements of different jobs in the national economy in adjudicating disability claims. The Veteran’s claims folder also contains lay statements concerning the functional impairment caused by his service-connected disabilities. A December 2018 written statement from J.W., provides that she witnessed the Veteran’s inability to sit or stand comfortably for long periods of time. Further, the Veteran was unable to engage in activities related to the Kiwanis organization due to his back issues. A December 2018 written statement from K.M.P., the Veteran’s daughter, states that the Veteran’s back has deteriorated significantly, and the pain has increased exponentially. The Veteran’s legs buckle from pain and tingling and he has to stop frequently when he is walking as a result. He has to walk with assistance by holding onto objects when his low back pain increases. He has significant difficulty when entering and exiting a motor vehicle, chair, or bed. The Veteran is unable to travel because he cannot sit for long periods of time due to pain. He can no longer work on his car, fish, engage in woodworking, tend to his garden, maintain his Kiwanis trailer, perform yardwork and chores, or play with his grandchildren and great-grandchildren. In December 2018, J.W.G., provided that the Veteran complained of severe back pain for many years and he refused to participate in community events because of severe back pain. The Veteran stated that his back pain has worsened over the past 5 or 6 years in a February 2019 written statement. He can no longer perform household chores or repairs. He has pain with walking, sitting, and standing. Unexpected flare-ups of pain and his hearing loss result in an inability to find or maintain any type of employment. In February 2019, the Appellant stated that the Veteran’s back pain has worsened over the past year. In his May 2019 notice of disagreement, the Veteran stated that sedentary work was only a small part of his job as a telephone engineer. He stated that he also worked in the field on poles and running cable. The Veteran stated that he does not have the experience or training to perform employment that is primarily sedentary, which often requires the use of computers. See July 2019 VA Form 9, Appeal to the Board of Veterans’ Appeals. He has difficulty hearing, which would hinder any type of professional telephone communications employment, which is commonly a duty with sedentary positions. Id. In January 2021, the Appellant and two witnesses advised that the Veteran’s previous employment as a telephone engineer required significant physical activity. While the Veteran was employed, he had difficulty sitting, standing, driving, walking, and lifting and moving equipment. The Veteran’s bilateral hearing loss and tinnitus also made communicating with co-workers and clients very difficult. Even in a sedentary position, the Veteran’s hearing loss and tinnitus would interfere with his ability to speak with people face-to-face, even if he was directly facing that person. With consideration of the Veteran’s educational and employment background, the Board finds that his service-connected bilateral hearing loss, tinnitus, degenerative arthritis of the thoracolumbar spine with sacroiliac injury, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity rendered him unable to obtain and maintain substantially gainful employment. There is no showing that the Veteran completed any additional education or training beyond two years of college coursework. His work experience was limited to employment as a telephone engineer and therefore his only previous employment required physical labor such as climbing poles and running cable, which he was no longer able to perform due to his service-connected degenerative arthritis of the thoracolumbar spine with sacroiliac injury and radiculopathy of the lower extremities. The preponderance of the evidence demonstrates that the Veteran was not able to obtain or maintain sedentary employment. The claims folder does not show that the Veteran had the training or experience to obtain sedentary-type work. Additionally, his service-connected bilateral hearing loss and tinnitus rendered him unable to effectively communicate in an office-like situation. Further, the Veteran’s degenerative arthritis of the thoracolumbar spine with sacroiliac injury and bilateral lower extremity radiculopathy prevented him from remaining seated or standing for extended periods of time, making sedentary-type work unavailable. Given the Veteran’s severe symptoms and functional impairment due to his service-connected bilateral hearing loss, tinnitus, degenerative arthritis of the thoracolumbar spine with sacroiliac injury, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity, the findings of functional impairment by VA examiners, his lack of employment since August 1995, his limited educational background, and his employment in one industry for the entirety of his civilian career, the Board finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. See 38 C.F.R. §§ 3.102, 4.16. (Continued on the next page)   Because the preponderance of the evidence is in favor of the award of a TDIU rating, the benefit of the doubt doctrine is not applicable in the instant appeal and a TDIU rating is assigned. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-57. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.