Citation Nr: 21023750 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-10 685A DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities render him unable to maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1966 to June 1968, to include service in the Republic of Vietnam. He received the Combat Action Ribbon, among numerous awards and decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office. The Veteran testified at a hearing with the undersigned in January 2018. In April 2018, November 2019, and September 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development and it has since returned for further appellate review. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, dermatitis of the feet, and bilateral upper and lower peripheral neuropathy. 38 C.F.R. § 4.16(a). The Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. Military personnel records reflect the Veteran’s military occupation specialty (MOS)/rating was that of an infantry rifleman. On his February 2011 application for unemployability he reported neuropathy in his feet and legs prevents him from following a substantially gainful occupation. The Veteran reported completing a high school education. He reported he last worked full-time in June 1992 as a railroad foreman. The Veteran presented for a VA examination in June 2011 to assess the current severity of his service-connected hearing loss and tinnitus, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported he has to turn the television or radio up significantly, he has difficulty understanding conversation if there is background noise, and he has general hearing difficulty. The Veteran presented for a VA examination in June 2011 to assess the current severity of his service-connected dermatitis, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. When asked to describe the functional impact the Veteran’s disability has on his ability to work the examiner reported his dermatitis does not impact his ability to work. The Veteran presented for a VA PTSD examination in June 2011 and February 2014 to assess the current severity of his service-connected PTSD, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported the Veteran’s PTSD results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. He endorsed markedly diminished interest or participation in significant activities, difficulty falling or staying asleep, irritability or outbursts of anger, intrusive memories, nightmares, flashbacks, detachment, some memory impairment, hypervigilance, and exaggerated startle response. When asked to describe the functional impact the Veteran’s disability has on his ability to work the examiner reported that the Veteran’s PTSD is controlled by continuous medication and he only suffers from nightmares and distressing thoughts. The Veteran presented for a VA examination in June 2019 to assess the current severity of his service-connected peripheral neuropathy, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported moderate upper extremity and severe lower extremity numbness. He also had mild paresthesias and/or dysesthesias. When asked to describe the functional impact the Veteran’s disability has on his ability to work the examiner reported no functional impact. The Veteran presented for a VA examination in October 2020 to assess the current severity of his service-connected peripheral neuropathy, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported pain after walking 100 yards, pain after standing 10 minutes in one place, and numbness and paresthesias after sitting for extended periods. In February 2021, the Veteran submitted private vocational assessment by consultant C.Z., who interviewed the Veteran and reviewed the record to include relevant vocational literature. Based on a vocational assessment, consultant C.Z. noted that the Veteran has the following limitations: below sedentary work restrictions; no prolonged sitting, standing, or walking; needs to alternate between sitting and standing as needed; needs to elevate his legs as needed; expected absence from work in excess of 4 days a month; needs unscheduled rest periods due to pain and fatigue; chronic pain in both legs; cannot stand or walk for more than 10 minutes at a time; heat and cold temperatures make neuropathy related pain worse; and constant pain affects his stamina, pace, and persistence. Consultant C.Z. noted that the Veteran has not been employed since 1994 as a result of his symptoms that have continued to progressively worsen. After the assessment, consultant C.Z. opined that the Veteran’s service-connected conditions are at least more likely than not to have resulted in his ability to secure or maintain substantially gainful employment at any exertional level as of May 19, 2010. Upon review, the Board finds the evidence at least in relative equipoise as to whether the Veteran’s service-connected disabilities render him unemployable under VA regulations. In that regard, the Veteran’s physical limitations would make it difficult to work, and the evidence also reflects that the Veteran may have further difficulties even with sedentary employment as he is unable to sit, stand, or walk for prolonged periods of time. His hearing loss, tinnitus, and PTSD would also likely hamper his communication skills. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners, treatment providers, and the vocational consultant, the Board does consider this level of impairment as one that would preclude employment for this Veteran. Resolving the benefit of the doubt in the Veteran’s favor, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. Entitlement to TDIU is granted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.