Citation Nr: 21040234 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-59 551 DATE: July 2, 2021 ORDER Entitlement to service connection for a back disability is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT 1. Prior to the promulgation of a decision in this appeal, the RO granted the full benefit sought in a July 2020 rating decision. 2. The Veteran's service-connected disabilities render him unable to work. CONCLUSION OF LAW 1. The criteria for dismissal of the appeal of entitlement to service connection for a back disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55, 20.204. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1994 to July 2004. These matters are on appeal from March 2017 and April 2018 rating decisions by a Department of Veterans Affairs Regional Office. These matters were previously before the Board and were remanded for further development in March 2019. The development has been completed and the matters are again before the Board. Dismissed Claim Regarding the Veteran's claim to service connection for a back disability, the RO granted this benefit in a July 2020 rating decision. As the full benefit sought on appeal was granted, further appellate review is mood. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, in the absence of any justiciable question, the Board does not have jurisdiction over the appeal, and the appeal is dismissed. TDIU Claim The Board notes the Veteran previously submitted a claim to a TDIU, which was denied. However, this matter was raised by the record as noted in the previous Board decision. The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more 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. See 38 C.F.R. § 4.16(a). The Veteran's current combined disability rating is 90 percent. The Veteran's combined disability rating has been 70 percent or greater from January 2017 and he currently meets the schedular requirements for a TDIU. The Veteran is currently service connected for the following disabilities: A back disability, rated as 20 percent disabling prior to May 5, 2018 and 40 percent thereafter, A left knee meniscal disability, rated as 20 percent disabling, A left ankle disability, rated as 20 percent disabling, Bilateral lower extremity radiculopathy, each rated as 20 percent disabling, Left knee limited flexion, rated as 10 percent disabling, Tinnitus, rated as 10 percent disabling, A right knee disability, rated as 10 percent disabling, And a scar, rated as noncompensable. The Veteran has previous experience as a customer service representative and cashier clerk. The Veteran had a high school education and no special training. (See September 2020 correspondence.) In January 2021, the Veteran submitted a statement about his work history. After his time in service, the Veteran worked as a cashier clerk and had trouble standing because of his back, radiculopathy, knee, and ankle issues. The Veteran then had a job as a telemarketer in which he was allowed to sit at a desk, but that was also painful on his lower back. The Veteran said in both jobs, he tried to stretch and move around, but that it didn't help his pain. The Veteran said the pain in his ankles and knees meant that he couldn't be on his feet longer than five minutes and could only walk about a half of a football field until he needed to rest. The Veteran also said his conditions made bending or lifting heavy objects difficult and he can't even help with household chores or ride in a vehicle for long periods of time. In January 2021, the Veteran's former spouse submitted a statement. She said that during his last job in customer service, he complained of pain a lot from sitting and that he had trouble before that from his pain. The Veteran's ex-spouse said he had trouble standing more than five minutes or walking longer distances and that she took care of all the household chores. In February 2021, the Veteran submitted a private opinion in which the examiner reviewed the Veteran's file and opined that the Veteran's service-connected disabilities rendered him unable to work. The examiner based this opinion on several of the Veteran's VA examinations and treatment records, noting that his physical disabilities cause him pain, led to trouble walking, sitting, standing, and lifting. The examiner also considered the Veteran's side effects of his medications, his past work history, and his educational background. Additionally, several of the Veteran's examiners have found his disabilities impact his ability to work. In a November 2015 examination, the Veteran reported his tinnitus impacted work making concentration difficult. A September 2016 examiner found the Veteran's knees prevented walking longer than 20 minutes but that they did not impact seated work. A March 2017 examiner found the Veteran's left ankle and his bilateral knee disabilities impeded his ability to walk for any prolonged period of time. A March 2017 examiner found the Veteran's back led to pain and decreased range of motion, preventing heavy lifting, pushing, or pulling. A May 2018 examiner found the Veteran's back impacted his ability to work in that the Veteran "wouldn't do well in a job requiring a lot of lifting." Thus, while none of his service-connected disabilities by themselves render the Veteran unable to work, when looking at his disability picture as a whole, it is clear that the Veteran's service-connected disabilities render him unable to work and therefore, a TDIU will be granted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.