Citation Nr: 21023310 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 929A DATE: April 20, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran served on active duty from August 1968 to June 1974. 2. The Veteran’s service-connected disabilities preclude him from securing and maintaining gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, 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 service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service connected for major depressive disorder (MDD), rated at 50 percent; degenerative disc disease of the lumbar spine, rated at 20 percent; and left and right lower extremity neuropathy, rated at 20 percent disabling each. His combined rating has been 70 percent since October 2008, and he has therefore satisfied the rating percentage for a TDIU for the entire period on appeal. 38 C.F.R. § 4.16 (a). Therefore, the threshold question is whether the combined impact of the Veteran’s service-connected disabilities precluded substantial and gainful employment. In this regard, the Veteran reported that he became too disabled to work in approximately 2008. He filed for benefits with the Social Security Administration (SSA) at that point, and listed, amongst other disorders, his back disorder and numbness in his legs as disabling and contributing to him retiring from his job in security. In support of his claim, the Veteran underwent several VA examinations to assess the functional impact of his service-connected disabilities on his employment. At an October 2014 VA examination, the Veteran noted that he was retired from his security job because he could not ambulate or climb stairs like he was required to. He also noted that he had issues concentrating, disturbances in mood and motivation, and mild memory loss. At a February 2015 VA spine examination, the examiner opined that the Veteran’s lumbar spine disability impacted his ability to work. The examiner noted that he had difficulty with prolonged walking, lifting, and bending. At a February 2015 VA examination for his MDD, the Veteran reported depressed mood, mild memory loss, sleep impairment, disturbances of motivation and mood, and an intermittent inability to perform activities of daily living. The examiner opined that the Veteran’s MDD affected his ability to work because his depressed mood caused him to avoid individuals at work, his memory, and forgetting tasks he is supposed to complete. The examiner also noted that the Veteran frequently felt distracted and confused, and that based on his level of depression alone, it appeared as though he was unable to be gainfully employed. Later, at a February 2021 VA examination of his peripheral neuropathy, the Veteran was found to have complete paralysis of his left musculocutaneous, anterior tibial, posterior tibial, and internal popliteal nerves. The examiner noted that the Veteran was required to regularly use a wheelchair, and that his bilateral leg pain impacted his ambulation and his ability to work. The Veteran’s available VA treatment records were also reviewed and recently showed significant mental health treatment with increased depression and inability to complete activities of daily living. Additionally, there were several periods of hospitalization. While the Board acknowledges that the Veteran has several other deteriorating medical conditions which contribute to his unemployability, it cannot be separated from his service-connected disabilities. Further, each examining VA provider has found that his service-connected disabilities did impact his ability to work. While sedentary work was not completely excluded, the Veteran and examiners have noted that he also cannot sit for prolonged periods of time due to a combination of his lumbar spine and lower extremity disabilities. Additionally, the Board must consider the Veteran’s limited occupational and educational experience. Specifically, on his June 2014 VA Form 21-8940, as well as his SSA records, the Veteran stated that he completed his GED with one year of college. His employment history varied, but he did not have any experience in sedentary work. Instead, he worked various jobs in security, machines operator, and other physically strenuous work. Based on the above, entitlement to TDIU is warranted. After considering the totality of the evidence, the weight of the evidence supports a finding that the Veteran is unemployable, at least in large part due to his service-connected neuropathy, lumbar spine disability, and MDD. Specifically, the Veteran is advanced in age and has not had any training which would allow him to engage in sedentary employment. Additionally, he has been noted to have trouble sitting for long periods which in itself would preclude such employment. Examiners have opined that his physical ailments have precluded him from any kind of physical labor and that he would have to miss work frequently. He is now noted to be in a wheelchair with complete paralysis in his left lower extremity. Additionally, his VA treatment records indicate that his depression has only worsened since his last evaluation in 2015 and that he is even more unable to operate functionally in a work environment. TDIU is warranted and the appeal is granted. (Continued on the next page)   Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.