Citation Nr: 21040639 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-57 368 DATE: July 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The probative evidence of record demonstrates that the Veteran is unable to obtain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from October 1966 to September 1967. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The above claim was previously before the Board in February 2021. The Board found the claim for entitlement to TDIU was reasonably raised by the Veteran's representative. The Board remanded for development. In March 2021, the RO mailed the Veteran a development letter informing the Veteran of the requirements for a claim of TDIU. Additionally, the RO provided VA Form 21-8940, needed to develop the Veteran's claim for TDIU. Since that date, VA has not received a completed VA Form 21-8940 from the Veteran. In an April 2021 rating decision, the RO denied the Veteran's claim to entitlement to TDIU. There has been substantial compliance with the remand instructions, and the issue is again before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board may proceed adjudicating the Veteran's claim with the available evidence of record. Entitlement to a total disability rating based on individual unemployability (TDIU) A total disability rating based upon individual unemployability 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 a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). The Veteran, through his representative, reasonably raised the claim of entitlement to a TDIU, including on an extraschedular basis, in a November 2020 memorandum. The Veteran contends that his service-connected foot, leg, and back disabilities have rendered him unable to obtain and maintain substantially gainful employment. The Board granted service connection for the Veteran's lumbar spine disability and bilateral hip disabilities in a February 2021 decision. As the AOJ provided 10 percent ratings for the Veteran's lumbar spine disability and bilateral hip disabilities, plus separate 10 percent ratings for bilateral lower extremity radiculopathy, in a February 2021 rating decision, the Veteran now meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a) for the entire appeal period. Specifically, the Veteran has 10 percent ratings for his service-connected residuals of stress fractures of his left and right heels, ratings of 10 percent for bilateral traumatic arthritis of the left and right hips secondary to the Veteran's left and right heel disabilities respectively, a 10 percent rating for traumatic arthritis of the lumbar spine secondary to the Veteran's left heel disability, and 10 percent ratings for bilateral lower extremity radiculopathy. This results in an overall 60 percent combined rating. The Veteran's service-connected disabilities are considered one disability under 38 C.F.R. § 4.16, as the Veteran's disabilities resulted from a common etiology or a single accident. Id. Therefore, the issue of entitlement to TDIU turns on whether the Veteran's service-connected disabilities impair him from securing and maintaining substantially gainful employment. Here, the evidence of record supports such a finding. The evidence of record shows that the Veteran completed a high school level education. After service, the Veteran attended vocational school and learned to become an HVAC and electrical technician. The Veteran later taught electrical wiring and HVAC skills classes. The Veteran reported working in a variety of jobs after service, to include work in demolition, as an electrician, HVAC specialist, and contractor. He last worked fulltime in 2004, as a maintenance contractor, but had to quit due to back and leg problems. In November 2020, the Veteran submitted a private medical opinion addressing the Veteran's ability to perform work-related physical activities as result of his service-connected disabilities. Following a review of the Veteran's medical history, the private physician established the Veteran's service-connected disabilities provided restrictions in the Veteran's abilities to perform occupational tasks. Notably, the private physician reported the maximum time the Veteran was able to stand, walk, or sit (with normal breaks) during an eight-hour day was less than two hours. Additionally, the private physician noted the Veteran would need to lie down at unpredictable intervals four to six times a day during an eight-hour work shift. Finally, the Veteran's service-connected disabilities would cause the Veteran to miss more than four days of work per month. In a November 2020 independent medical evaluation, the Veteran's private physician provided the opinion that the Veteran was as likely as not totally disabled due to individual unemployability. The Board finds the evidence of record as a whole demonstrates the Veteran's service-connected disabilities prevent him from securing and maintaining substantial employment. The November 2020 private vocational activities assessment is probative evidence that the Veteran's service-connected disabilities prevent the Veteran from performing physical tasks needed to obtain and maintain gainful employment. The Veteran's physical limitations, particularly to standing and sitting for extended periods, would bar employment in the fields for which the Veteran has experience and is qualified to work. Additionally, the Veteran's need for irregular periods of rest and numerous work absences would significantly limit the Veteran's employment. The Board assigns probative value to the November 2020 evaluation, as the private physician provided a definitive opinion supported by a fully articulated rationale with citations to the medical evidence of record. See Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, the Board concludes that the Veteran has been rendered unemployable due to his service-connected disabilities, and a grant of TDIU is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.