Citation Nr: 21025434 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 20-01 888 DATE: April 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1987 to July 1990 and from April 1991 to July 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a TDIU The Veteran seeks entitlement to TDIU as part of his increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record). Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Here, the Board finds that the Veteran meets schedular criteria, set forth in 38 C.F.R. § 4.16 (a), for an award of a TDIU. The Veteran’s lumbar spine disability is rated at 40 percent with additional service-connected disabilities bringing the combined disability rating to 80 percent. With regards to the central inquiry regarding TDIU, the evidence shows the Veteran obtained an associate degree. Regarding his employment history, he worked as a butcher prior to service. During service, he worked as instructor, and after separation from service, he was employed as a ground keeper, truck driver, and delivery driver. The Veteran’s private medical treatment records from Riverside Pain Physicians shows he was experiencing sharp and shooting pain of his low back which radiated to his right lower extremity from 2015 to 2018. The private provider noted that he had irritation of the nerves frequently exceeding 6 out of 10 in severity. He also demonstrated functional impairment with activities of daily living such as walking, standing, sleeping, and sitting comfortably. The private medical treatment records further show he underwent multiple steroid injections with no relief. In a July 2018 VA examination, the Veteran reported having pain occasionally down his right leg to his foot described as pin and needle sensation. He further reported sharp pain on the right side of his back and lingering dull pain relieved by rest. He also reported using a back brace with certain activities, medication and epidural shots for pain, and he attends chiropractor sessions. He stated that he stands to relieve the pain and then lay back down if it persists. He reported that he quit his job as a truck driver due to pain. Upon evaluation, the VA examiner indicated that his lumbar spine disability impacted his ability to work. The VA examiner explained that his lumbar spine disability limits his ability to do strenuous work but not light or sedentary work. It was further noted that he avoids climbing, bending, stooping, crawling, or prolonged walking or standing. A July 2018 private treatment record also indicated that his leg pain caused functional limitation in his ability to exercise and perform activities of daily living. In June 2019, the Veteran underwent VA examinations for his right ankle, right and left knee, and right-side varicocele disabilities. However, the VA examiner noted that these disabilities did not impact his ability to work. During a July 2019 VA examination for his right shoulder disability, a VA examiner further stated that his right shoulder disability did not impact his ability to perform any type of occupational task. In an April 2020 private treatment record, the Veteran reported that he was a groundskeeper mowing, collecting trash, performing general building maintenance, and receiving and ordering supplies from 2013 to 2016. He reported he had to leave his job due to his back pain because he could not adequately perform the standing, lifting, or sitting requirements. He then started a job driving a cement truck in 2017 hoping that the reduction in standing, walking, and bending would allow him to be more efficient and experience less pain. However, he stated that the job lasted less than a year because the sitting requirement increased pain in his back and legs. He further stated that climbing out of trucks and lifting significantly aggravated his back and leg pain as well as his shoulder. After this employment he worked for Sherwin William delivering paint but had to quit after three days. He stated he was unable to get out of bed and was experiencing significant back and leg spasm. Upon consideration of the Veteran’s reports and medical records, the private examiner stated that a combination of pain and limitations caused by the Veteran’s service-connected impairments prevented him from being able to work full-time since April 2018. The Veteran was further afforded VA examinations in September 2020 to determine whether his service-connected disabilities impacted his ability to work. Upon evaluation, a VA examiner stated that his lumbar spine disability impacts his ability to work as it interferes with repetitive bending or twisting for longer than 30 minutes or lifting. Regarding his bilateral knee disabilities, the September 2020 VA examiner stated that it did not preclude Veteran from sedentary type work but impacts his ability to work as it interferes with climbing, squatting, kneeling, standing or walking for longer than 30 minutes. The VA examiner further stated that his right ankle interferes with standing, walking, or running for longer than 15 minutes. His right shoulder disability also impacts his ability to work as it interferes with prolonged or repetitive overhead activities, pushing/ pulling over 30 mins, or lifting weights over 25 pounds. His eczema and right-side varicocele disability did not impact his ability to work. In a January 2021 VA examination for his right ear hearing loss and tinnitus, the VA examiner stated that his right ear hearing loss causes difficulty with hearing conversational speech while in background noise. His tinnitus disability is also distracting and causes hearing issues with conversational speech and sleep. On this record, the Board finds that the Veteran’s service connected lumbar spine, right lower extremity radiculopathy, right ankle, bilateral knees, right shoulder, right ear hearing loss, and tinnitus disability has prevented him from realistically obtaining and maintaining any form of gainful employment consistent with his work and education background. Specifically, the medical evidence largely reflects that these disabilities causes him to be physically limited in bending, climbing, lifting, squatting, standing, and sitting. Although a July 2018 and June 2020 VA examiner stated that his lumbar spine disability would not preclude him from sedentary type employment, the Veteran has competently and credibly reported that he was unable to work as a truck driver as the sitting requirement caused increased pain in his back and legs. As such, this goes against the July 2018 and June 2020 VA examiner’s statements that he would not be precluded from doing sedentary type work. Moreover, while the evidence shows that he obtained an associate degree, there is no evidence demonstrating he was employed in an occupation consistent with his associate degree. In light of the Veteran’s education, limited employment history, and physical limitation in bending, climbing, lifting, standing, walking, and sitting caused by his service-connected disabilities, the Board finds that a grant of a TDIU rating is warranted. G. Jackson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.