Citation Nr: 21011905 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-13 233 DATE: March 3, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for establishing entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 decision, the Board denied entitlement to service connection for a right shoulder disorder and entitlement to TDIU. The Veteran appealed the Board’s January 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 memorandum decision, the Court vacated the Board’s decision and remanded the matters to the Board for readjudication consistent with the decision. This matter was previously remanded by the Board in February and November 2020. Entitlement to a TDIU due to service-connected disabilities is granted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, consistent with his or her education and occupational experience. 38 C.F.R. § § 4.16(a). In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 4.16(a). As an initial matter, the Board notes the schedular requirements for a TDIU are met. In this regard, the Veteran is service-connected for 20 percent evaluation for lumbosacral strain, rated as 20 percent disabling; left and right radiculopathy, rated as 10 percent disabling for each (which meets the 40 percent criteria based on common etiology), dorsal spine compression fraction, rated as 20 percent disabling; right shoulder tendonitis with impingement and osteoarthritis, rated as 20 percent disabling, type 2 diabetes, rated as 20 percent disabling, and a non-compensable evaluation for GERD. His overall combined evaluation is 70 percent. As such, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The Veteran contends his service-connected back and shoulder disabilities prevent him from obtaining substantially gainful employment. Accordingly, the claim turns on whether the Veteran’s service-connected disabilities preclude gainful employment. The Veteran’s VA Form 21-8940 received in September 1998 indicates that he was employed as a welder and that he worked 40 hours per week from July 1988 to June 1995. He reported that he stopped working because of his disabilities. He reported that he completed three years of high school and had not had any other education or training since he became too disabled to work. Since becoming too disabled to work, he reported having tried to obtain employment as a laborer in March and June of 1998. He stated that his disabilities have affected his employment since June 1995. Per VA spine examination in October 2009, the examiner reported that there is moderate impairment of daily occupational activities due to the Veteran’s back condition. Upon November 2013 VA spine examination, the examiner reported that the Veteran is unable to stand or walk for more than a few minutes to perform the type of factory work he was doing after leaving the military due to his back pain. Upon November 2013 VA shoulder examination, the examiner reported the Veteran’s right shoulder did not impact his ability to work. Per the August 2016 VA lumbar spine examination, the examiner determined that the Veteran’s back condition impacted his ability to work. The examiner noted that the Veteran reported that he is not able to walk for long distances or lift anything heavy secondary to his back pain. The examiner remarked that the Veteran reported working at Ford Motors on the assembly line where he had to lift heavy weights after the service but that he has not worked since he was 49 years of age. Per the August 2016 VA shoulder examination, the examiner reported that the right shoulder condition impacted the Veteran’s ability to work and noted the Veteran’s reported that he is not able to lift anything heavy secondary to his bilateral shoulder pain. Upon May 2018 VA back examination, the examiner reported the Veteran’s back condition impacted his ability to work, described as pain with prolonged walking. The Board notes that a December 1997 Social Security Administration (SSA) determination awarded the Veteran SSA disability benefits due solely to his back and right shoulder conditions. SSA determined that the Veteran had not performed any substantial gainful work activity since June 30, 1995, his impairments prevent him from performing more than sedentary work activity, he is unable to perform past relevant work, he has a limited education and no transferable skills. Further, SSA found that considering the Veteran’s residual functional capacity, education and vocational factors, there are no jobs that exist in significant numbers which he can perform with consideration. SSA also found the Veteran to have been disabled since April 14, 1997. (Continued on the next page)   Based on the foregoing evidence of record, the Board finds that TDIU is warranted for the Veteran. While not binding on VA, the Board notes that the Veteran has been found to be disabled on the basis of his back and right shoulder disabilities by SSA. Further, the VA back and shoulder examinations of record together reveal that the Veteran’s disabilities affect his ability to work. Therefore, after resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected back and right shoulder disabilities are sufficient to show that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Accordingly, entitlement to TDIU is granted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.