Citation Nr: 21030478 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 08-38 786 DATE: May 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the relevant periods on appeal, effective February 12, 2013, is granted. FINDING OF FACT The evidence of the record indicates that the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU, for the relevant periods on appeal, effective February 12, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.401, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1967 to October 1971 with additional periods of service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in January 2021, it was remanded for additional development. Specifically, the RO was instructed to obtain an adequate medical opinion regarding the Veteran's back and neck disabilities. The Veteran was provided with the relevant examinations and the RO granted service connection for the Veteran's back and neck disabilities in a March 2021 rating decision. As such, the Board finds that the AOJ substantially complied with the directives in the January 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran currently has a total 100 percent disability rating for his service-connected disabilities effective February 4, 2021. Additionally, the Board notes that from October 10, 2018 to January 31, 2021 the Veteran was in receipt of a temporary total 100 percent disability rating for his service-connected prostate cancer residuals. As such, the Board in this decision will be addressing the relevant periods on appeal when the Veteran was not afforded a total 100 percent disability rating. TDIULegal Criteria Total disability ratings for compensation may be assigned where the schedular 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, this disability shall be ratable at 60 percent or more, and that, 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). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as "one disability" for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). A veteran's age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. Analysis As an initial matter, the Board observes that the Veteran has met the schedular criteria for TDIU from at least November 21, 2006. For the relevant periods, on appeal, the Veteran had a combined schedular rating of 70 percent disabling, which increased to a temporary 100 percent disabling effective October 10, 2018, with an 80 percent rating then effective February 1, 2021. During the relevant periods on appeal, the Veteran's service-connected disabilities were as follows: temporomandibular joint disease at 20 percent disabling increased to 30 percent disabling effective April 2, 2014; a noncompensable sinusitis disability rating increased to 30 percent effective July 31, 2019; lower back degenerative arthritis with intervertebral disc syndrome at 20 percent disabling; voiding dysfunction residuals of prostate cancer at 100 percent disabling effective October 10, 2018 decreased to 20 percent disabling effective February 1, 2021; degenerative arthritis of the cervical spine at 10 percent disabling; right lower extremity sciatic radiculopathy at 10 percent disabling; left lower extremity sciatic radiculopathy at 10 percent disabling; right 5th cranial nerve numbness at 10 percent disabling; left leg varicose veins at 10 percent disabling; hemorrhoids at 10 percent disabling; and noncompensable disability ratings for an eustachian tube dysfunction, tension headaches, and rhinitis. Based on the evidence, the Board finds that the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. The Veteran has not worked since his last employment as a U.S. Postal Service Letter Carrier ended in February 11, 2013. See May 2015 Social Security Administration Work History Report; see also September 2014 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. The Board further notes that this has been the Veteran's sole employment since 1973. This job, and virtually any other form of employment, would require the Veteran to be able to attend normal workday hours, as well as interact and communicate effectively with others. Additionally, the Veteran has four years of college education and denied any additional education or training after becoming disabled. The Veteran's medical records reflect significant mental and physical limitations due to his service-connected disabilities. These include fatigue; difficulty concentrating; frequent urination; nocturia; limitations on prolonged standing and sitting; limited activities requiring lifting, pulling, or pushing any light, moderate, or heavy objects due to pain, numbness, and tingling; limited ability to perform overhead work; limitations on ability to look behind himself, as used in driving; inability to masticate properly; and pain and discomfort. Additionally, they reflect significant social and occupational limitations. Thus, his service-connected disabilities not only caused significant work impairment but also substantially impaired his capacity to gain work experience following service. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold, the ultimate inquiry is instead on the individual claimant's ability to secure or follow that type of employment). In this case, the Board must determine the value of all evidence submitted, including medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board notes that the Veteran has been afforded multiple VA examination opinions over the years. The VA examinations come from competent examiners who support their conclusions with evidence and sound medical reasoning. As such their medical opinions meet the first and second step of the inquiry. Throughout the record the VA examiners note that the Veteran would have multiple difficulties associated with employment due to service-connected back, neck, jaw, and prostate disabilities. The Board has considered the Veteran's lay statements in support of his claim. He is competent to report symptoms such as pain and fatigue because it requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record, notably the VA examination reports. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Affording the Veteran the benefit of the doubt, the Board finds that his significant impairment due to service-connected disabilities with consideration of his educational background and work history (little or no work experience outside of his employment as a letter carrier), rendered him incapable of obtaining or retaining substantially gainful employment. As noted above, the Veteran's service-connected disabilities met the schedular requirement for TDIU during the relevant periods, and the Veteran provided competent evidence addressing his symptoms and limitations. Additionally, the evidence is at least in equipoise as to whether the Veteran was unemployable due to his service-connected disabilities. Thus, the Board resolves all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities have prevented him from obtaining and maintaining substantial employment consistent with his educational background and work history since at least February 12, 2013 (the day after the Veteran's last day of employment), and therefore, a TDIU is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.