Citation Nr: 21024719 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-41 225 DATE: April 26, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities are shown to have rendered her unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1991 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. 1. Entitlement to a TDIU. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran contends, in essence, that she is unemployable due to her service-connected disabilities. In her November 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, she reported that he had last worked full-time as a supply clerk during active service. She stated she did not leave because of her disability but asserted that she became too disabled to work in March 2010. She reported having completed one year of college and that she had no other education or training. At her February 2021 hearing, the Veteran testified that she had worked after service with a friend selling clothes and shoes for approximately six months but had to quit because of back pain and inability to walk, sit, or wait on customers. Service connection has been established for chronic bronchitis (60 percent), migraine headaches (30 percent), degenerative arthritis of the lumbar spine (20 percent), chronic right knee strain with degenerative joint disease (10 percent), tinnitus (10 percent), acid reflux (10 percent), hypothyroidism (10 percent), radiculopathy of the right lower extremity (10 percent), bilateral hearing loss (0 percent), hypertension (0 percent), residual scar to the right palm (0 percent), residual scar to the left palm (0 percent), carpal tunnel status post release at the left wrist (0 percent), and carpal tunnel status post release at the right wrist (0 percent). Her combined schedular disability is 90 percent, effective from August 1, 2010. The schedular criteria for a TDIU are met. See 38 C.F.R. § 4.16(a). The pertinent evidence of record includes a November 2013 VA back conditions examination report noting the examiner’s opinion that the Veteran was not employable in reference to physical and/or sedentary work. It was noted she was on a 20-pound lifting restriction which would prohibit her from doing physical labor. Her neurosurgeon had also advised her not to do forward bending and it was noted she was further limited in stooping/squatting and in the length of time she could sit or stand. She had to do her work at home in short intervals which the examiner stated would not be acceptable to an employer. The Veteran provided copies of private medical records in February 2021 including a June 2012 treatment report from W.B, D.O., noting that the Veteran’s surgical incisions were small and well healed. It was further noted, however, that she should not be lifting heavy objects which was the work she had been doing her whole life and at her age it was quite reasonable to make her 100 percent disabled. A statement was received in February 2021 from the Veteran’s VA medical care provider noting that she had been unable to work for the past year due to severe back and left leg pain associated with a cyst compressing a nerve. It was the physician’s opinion that she was 100 percent disabled due to her back condition. Based upon the available record, the Board finds the evidence demonstrates that the Veteran’s service-connected disabilities have rendered her unable to obtain or maintain substantially gainful employment. The June 2012, November 2013, and February 2021 medical statements are persuasive that the Veteran is unable to perform the type of work for which she was previously employed. The Board further notes that the Veteran has limited education and no specialized training that would allow her to overcome her physical impairments due to service-connected disabilities. The appeal as to this matter is granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.