Citation Nr: 21010494 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-04 973 DATE: February 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran is unable to secure or follow substantially gainful employment due to his service-connected musculoskeletal disabilities. CONCLUSION OF LAW 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 April 1972 to August 1992. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. In January 2021, he had a hearing before the undersigned Veterans Law Judge, and a transcript is of record. The Veteran filed a claim for TDIU in October 2014, contending that he had been unable to obtain or maintain employment since July 2013 due to his service-connected disabilities. A TDIU may be assigned when the disabled veteran is, in the judgment of VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran’s combined rating has been 90 percent since 2012 and his thoracolumbar spine disability is rated at 40 percent; accordingly, the Veteran satisfies the schedular criteria for a TDIU for the entire period on appeal. His other service-connected disabilities include radiculopathy of the left leg due to the lumbar spine disability, bilateral pes planus with bilateral plantar fasciitis, tendonitis of both ankles, right and left elbow disorders, hearing loss, tinnitus, pseudofolliculitis barbae, and headaches. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. Id. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. See id. Determining whether the non-economic component is satisfied necessitates consideration of the Veteran’s history, education, skill, and training, his physical ability to perform the type of activities required by the occupation at issue, and his mental ability to perform the activities required by the occupation at issue. See id. The Veteran testified that he has not been employed since July 2013 when he retired from his job. The evidence shows he worked as a corrections officer after separating from service in 1992 through 2013. The Veteran testified that he was unable to engage in his normal duties, to include walking around the building, running, and being able to respond quickly to incidents. His primary catalyst for retirement was his back disability, which required surgery in 2013. Post-surgery, he still has pain and difficulty performing daily activities. He further testified that his ankles swell, ache, and prevent him from standing or walking for long periods. The VA examinations and private and VA treatment records support his testimony. The VA examiner in June 2013 opined that the Veteran’s conditions impaired his ability to walk, stand, climb stairs, bend, and lift. Private treatment records from 2013 and 2014 show he underwent surgery in 2013 and continued to experience pain, numbness, stiffness, and difficulty with activities of daily living afterwards. A November 2013 physical therapy record shows problems with balance, endurance, gait, joint integrity, joint mobility, locomotion, impaired muscle endurance, muscle strength, pain, posture, and range of motion. VA treatment records further show continued complaints of pain, numbness, and difficulty with basic activities such as getting out of bed and walking. In November 2017, the Veteran reported he was unable to walk for exercise due to back and leg pain and shortness of breath. A March 2020 record shows that he still experienced right knee pain after walking on a treadmill for a stress test, which he was unable to complete due to pain. In consideration of the lay and medical evidence, the Board finds that the Veteran is entitled to a TDIU, based on his service-connected musculoskeletal disabilities. The evidence shows the Veteran has only worked as a corrections officer since separation from service and that his musculoskeletal disabilities prevent him from engaging in the key responsibilities associated with that job. Because the evidence shows that he cannot secure or follow substantially gainful employment due to his service-connected musculoskeletal disabilities, the claim for a TDIU is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, 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.