Citation Nr: 21032467 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-00 758 DATE: May 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT It is as likely as not the Veteran's service-connected disabilities prevent her from being able to obtain and maintain substantially gainful employment. CONCLUSION OF LAW Resolving all reasonable doubt in her favor, the criteria are met for entitlement to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to April 1974. This appeal to the Board of Veterans' Appeals (Board) originated from a November 2010 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) that concerned other claims for a higher rating for a thoracic spine disability and for service connection for a lumbar spine disability. An August 2020 RO decision since issued, however, during the pendency of this appeal, granted service connection for a lumbar spine disability. This claim for a TDIU derives from those other claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a December 2020 decision, the Board denied the claim for a higher (compensable) rating for the thoracic spine disability and explained that the granting of service connection for the lumbar spine disability during the pendency of the appeal had resolved that other claim. If the Veteran disagrees with the initial rating and/or effective date assigned for her lumbar spine disability, she must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, she had not done that at least at time of the Board's December 2020 decision, so that claim was no longer at issue. As for this remaining TDIU claim, the Board remanded it back to the RO (AOJ) for a VA examination assessing the functional impact of the Veteran's service-connected disabilities which, in turn, would assist VA adjudicators in determining whether she is unemployable because of her service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Entitlement to a TDIU A TDIU requires that the Veteran's service-connected disabilities, alone, preclude her from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits her to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice, 22 Vet. App. at 452. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance when the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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, 3.34l, 4.16(a). Disabilities affecting both upper extremities or both lower extremities or arising from common etiology or single accident or affecting a single bodily system are considered as one, collective, disability for purposes of determining whether these threshold minimum rating requirements are met. Id. Here, effectively since March 19, 2021, the Veteran has had a combined 70 percent rating for her service-connected disabilities (see 38 C.F.R. § 4.25), with the following individual ratings for them: abdominal hysterectomy and bilateral salpingo-oophorectomy, rated as 50-percent disabling; lumbosacral spine degenerative disc disease and facet arthropathy with degenerative arthritis of the spine, rated at 20 percent; associated left lower extremity radiculopathy, also rated at 20 percent; post-traumatic arthritis, proximal interphalangeal joint, right finger, rated at 0 percent (noncompensable); and osteoporosis of the thoracic spine, also rated at 0 percent. Thus, the § 4.16(a) schedular rating requirements for a TDIU are met. Having determined the ratings for the Veteran's service-connected disabilities meet the threshold minimum rating requirements of § 4.16(a), the remaining inquiry is whether they also render her unemployable meaning incapable of obtaining or maintaining what could be considered substantially gainful employment versus employment that, instead, is just marginal in comparison. On March 14, 2019, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Here, when considering all the relevant evidence of record, the Board finds relative equipoise on the question of whether the Veteran is unable to work in a substantially gainful capacity as a result of her service-connected disabilities. Employment out of mere accommodation is not substantially gainful employment. See 38 C.F.R. § 4.18. The record on appeal reflects that the Veteran's thoracolumbar spine disabilities and associated left lower extremity radiculopathy cause significant functional limitations. She worked as a nursing assistant after service but stopped when her lumbosacral spine disability worsened to the point of preventing standing for prolonged periods or lifting patients. See September 2010 VA spine examination. Her more recent April 2021 VA examination, on remand, found current symptoms including reduced range of motion, painful motion, and functional interference with sitting, standing, and weight-bearing, as well as constant radicular pain. She reported inability to put on shoes, clean, do housework of any kind, and daily flare-ups of her systems for 2 to 3 hours, during which she must rest for pain relief. Treatment records reflect symptoms worsening in cold weather, indeed, to the point that she is entirely unable to stand on cold days. She has undergone a range of treatment measures including continuous pain medication and physical therapy, but without any significant or longterm relief of her symptoms. In sum, the record establishes that this Veteran, who is regularly unable to sit, stand, or carry weight due to her service-connected spine disabilities and associated left lower extremity radiculopathy, ended her career because of these disabilities. There is no indication that her symptoms have improved since then. Rather, she is unable to perform many basic tasks required to maintain employment. Generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether she can perform the physical and mental acts required by employment, not whether she can find employment. Here, though, the evidence is at least in relative equipoise concerning whether the Veteran can perform the physical acts required by employment, certainly if substantially gainful employment and not just marginal employment. Considering her severe physical limitations, the Board finds the evidence shows that, for all intents and purposes, she was precluded by reason of her service-connected disabilities from obtaining and maintaining substantially gainful employment consistent with her education and occupational experience. As such, her claim is granted See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.