Citation Nr: 21011143 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-06 233 DATE: March 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1977 to December 1997. In July 2018 and 2020, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its July 2018 and 2020 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a TDIU due to service-connected disabilities is granted. The Veteran asserts that he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. When a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Veteran is service-connected for depression associated with degenerative changes of the lumbosacral spine, rated as 70 percent disabling effective September 6, 2011; for degenerative changes of the lumbosacral spine rated as 10 percent disabling effective January 1, 1998, 20 percent disabling effective September 6, 2011, and 40 percent disabling effective September 9, 2014; for tinnitus rated as 10 percent disabling effective January 1, 1998; for anal fissure with status-post lateral sphincterotomy rated as noncompensable effective January 1, 1998 and 10 percent disabling effective July 23, 2010; for hemorrhoids rated as noncompensable effective January 1, 1998 and 10 percent disabling effective September 6, 2011; and for bilateral high frequency hearing loss rated as noncompensable effective January 1, 1998. As such, he meets the schedular threshold criteria for consideration of a TDIU. 38 C.F.R. § 4.16 (a). Additionally, upon review of the evidence, the Board finds that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. Turning to his educational and work experience, the evidence of record indicates that the Veteran has a high school education but no subsequent education or training. Regarding his work history, on his VA Form 21-8940, the Veteran indicated that he worked as a car salesman. The Board notes that the Veteran has indicated that sales and specifically car sales requires a level of interpersonal interaction and a degree of physicality, which the Veteran could not maintain due to his mental health and lumbar spine symptoms. Turning to the evidence of record, the Board notes there are various VA examinations, treatment records, Social Security records as well as private opinions which speak to the impact, if any, that the Veteran’s various service-connected disabilities have on his ability to obtain and sustain meaningful employment. In February 1998 the Veteran underwent a VA Audiological examination, and the examiner noted that the Veteran reported difficulty hearing and understanding in a competing noise situation. The examiner noted that the Veteran had bilateral hearing loss as well as tinnitus and that such interfered with the Veteran’s ability to hear and understand conversational speech. However, the examiner did not discuss how the Veteran’s hearing loss and tinnitus specifically impacted his ability to work. In September 2010 the Veteran again underwent a VA Audiological examination. The examiner noted that the Veteran had bilateral hearing loss and tinnitus, but found that such had no significant effects on his occupation or daily activities. In addition, the Veteran underwent a VA Rectum and Anas examination. The examiner noted that at the time, the Veteran had a normal anus but a history of anal fissure with status post lateral sphincterotomy. The examiner found that the Veteran’s condition would have significant effects on his ability to work. Finally, the Veteran underwent a VA Back Conditions examination. The examiner noted that the Veteran suffered from mild degenerative changes of the lumbosacral spine and that such would impact his ability to work as it caused difficulty getting up out of a chair and that he would not be able to perform duties as required. In December 2010, it was noted by the Social Security Administration that the Veteran could not sit or stand in one spot for more than 15-20 minutes. In October 2011 the Veteran underwent a VA Rectum and Anus Conditions examination. The examiner noted that the Veteran suffered from internal or external hemorrhoids as well as anal fissure but that the later had resolved. The examiner noted that such conditions did not impact his ability to work. In addition, the Veteran underwent a VA Back Conditions examination. The examiner noted that the Veteran suffered from degenerative disc disease, and he stated that the Veteran could not work due to his back disability. Furthermore, the Veteran stated that he had quit his job due to conflicts with his boss and that he had quit his prior job due to back pain. Furthermore, it was noted that trouble sleeping due to back pain and distress and concern over not being able to provide for his family caused the Veteran “significant distress.” The examiner also noted that the Veteran’s disability would impact his ability to work. Finally, the Veteran underwent a VA Mental Disorders examination. The examiner noted that the Veteran suffered from depressive disorder. The examiner found that the symptoms of the Veteran’s condition were not severe enough to either interfere with occupational and social functioning or to require continuous medication. In April 2012 the Veteran underwent a VA General Medical examination. The Veteran reported that he had worked as a car salesman and stopped working in July 2010. The examiner noted that the Veteran stopped working due to his back pain. The examiner opined that the Veteran could not perform physical labor but that he could handle some sedentary work. In addition, the Veteran underwent a VA Rectum and Anus Conditions examination. The examiner noted that the Veteran suffered from internal or external hemorrhoids, but found that such would not impact his ability to work. Finally, the Veteran underwent a Back Conditions examination. The examiner noted that the Veteran suffered from lumbar degenerative disc disease, and that such would impact his ability to work. The Veteran reported that he could not bend, lift, squat, weed or mow. In May 2012 the Veteran underwent a VA Audiological examination. The examiner noted that the Veteran had bilateral hearing loss and tinnitus. However, the examiner found that the Veteran’s conditions would not impact his ability to work or his activities of daily living. Treatment records from 2012 to 2013 indicated that the Veteran’s back pain made him irritated and limited his physical activity. Furthermore, he was noted to suffer from social withdrawal and a deep distrust of others. In September 2014 the Veteran underwent a VA Rectum and Anus Conditions examination. The examiner noted that the Veteran suffered from anal fissures with status post lateral sphincterotomy and hemorrhoids. The examiner found that the Veteran’s conditions impacted his ability to work. In additional, the Veteran underwent a VA Back Conditions examination. The Veteran reported near constant back pain which radiated into his limbs. He noted less movement than normal with pain on movement, disturbance of locomotion and interference with sitting, standing, and/or weight bearing. The examiner noted that the Veteran suffered from degenerative arthritis of the spine. The examiner found that such would impact the Veteran’s ability to work, as it would prohibit any physical labor. The examiner found that the Veteran could do sedentary labor, but only if allowed to reposition regularly. In January 2020 the Veteran underwent a VA Back Conditions examination. The examiner noted the Veteran’s degenerative changes of the lumbosacral spine, and that such would impact his ability to work. The Veteran reported daily flare-ups with minor activity. The examiner noted that while the Veteran did not have any complications involving his bladder or bowels, he did have to avoid lifting more than 10 lbs., and could do no repetitive bending at his waist, could not stand for more than 10 minutes or walk for more than 40 feet. In addition, the Veteran underwent a VA Rectum and Anus Conditions examination. The examiner noted that the Veteran suffered from anal fissures with status-post lateral sphincterotomy. The Veteran reported occasional itches, but that he did not have any impairment in bowel or anal functions or bowel incontinence. The examiner noted that the Veteran did not take any medications, and did not require any accommodations. Finally, the examiner noted that such did not impact his ability to work. In November 2020 the Veteran underwent a VA Mental Health examination. The examiner noted that the Veteran suffered from persistent depressive disorder with peristent moderate major depressive episodes with anxious distress. The Veteran reported persistent symptoms without remission for more than 2 years, and he felt that his medication had been largely ineffective. The examiner noted that the Veteran was highly irritable and that his back pain exacerbated his mood. The examiner found that the Veteran’s irritability and mood would likely affect his ability to interact with the public, coworkers, and supervisors. Furthermore, the Veteran was found to be easily overwhelmed and that his mental health symptoms appeared to be worsening. The examiner noted that the Veteran’s mental health conditions caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In February 2021, the Veteran’s representative submitted additional evidence in support of the Veteran’s claim. Such included private assessments from October 2015 and January 2021. The October 2015 examiner noted that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his major depressive disorder. Furthermore, the examiner noted that the Veteran’s problems were not just psychological but that his physical restrictions also posed a huge impediment to working noting how uncomfortable the Veteran was sitting for periods of time and that such exacerbated the Veteran’s mental health by making him irritable. In addition, the January 2021 examiner noted that the Veteran was only able to stand, walk and sit for less than 2 hours and would be to lift and carry no more than 10 lbs. occasionally. Furthermore, the examiner noted that the Veteran would need to leave early or miss work due to limited mobility, severe pain, poor sleep, and poor concentration and focus. The examiner found that when the Veteran’s physical and mental limitations were factored in, he was unable to maintain substantially gainful employment as a result of his service-connected disabilities since September 2011. While most of the VA examiners indicated the Veteran could perform some work, specifically sedentary work, the private examiners indicated that the combination of the Veteran’s physical and mental health conditions would prohibit work where the Veteran would have to interact with the public, coworkers, or supervisors. Furthermore, the Veteran’s physical restraints would require various accommodations or entirely prohibit any type of physical labor. Therefore, both sedentary and physical labor appear to be prohibited. Finally, the Veteran does not have the skills or expertise to perform other types of solitary employment. In this regard, he has no additional training and has never held a position in an office setting. Therefore, when taking into account the Veteran’s educational and work history as well as his various service-connected disabilities which cause both physical and psychological symptoms, the Board finds that the Veteran is not able to maintain the type of employment in which he is experienced. Notably, the question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment he is experienced in due solely to his service-connected disabilities. In this regard, the Board finds the opinions of the VA examiners and private examiners to be highly probative as all of the examiners considered the full evidence of record, including lay statements, and clearly articulated how the Veteran’s various service-connected disabilities would individually and collectively hinder physical as well as sedentary and solitary employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Therefore in light of the totality of the evidence, the Board finds that a TDIU is warranted. Based on the analysis above and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, Gilbert, supra. Therefore, entitlement to a TDIU is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.