Citation Nr: 21041949 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 10-34 234 DATE: July 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective June 10, 2009. FINDING OF FACT The evidence is at least in equipoise that the Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969, including in the Republic of Vietnam as a Combat Engineer. This matter comes before the Board of Veterans' (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal has been remanded by the Board multiple times, most recently in March 2021. 1. Entitlement to a total disability rating based on individual unemployability The Veteran contends that he is entitled to a TDIU due to his service-connected disabilities. The appeal period begins on June 10, 2009, the date of receipt of his claim for entitlement to TDIU. This claim has been continuously pursued and appealed since that date. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Effective June 10, 2009, the Veteran has been service connected for an unspecified depressive disorder associated with lumbar spine condition, evaluated as 30 percent disabling; lumbar spine condition, evaluated as 20 percent disabling; left knee instability, evaluated as 20 percent disabling; right lower extremity radiculopathy sciatic nerve, associated with lumbar spine associated with lumbar spine condition, evaluated as 20 percent disabling; left lower extremity sciatic nerve, associated with lumbar spine associated with lumbar spine condition, evaluated as 20 percent disabling and left knee condition, evaluated as 10 percent disabling. His total combined evaluation for the period is 80 percent for the entire appeal period; he therefore meets the criteria under 38 C.F.R. § 4.16(a) for the entire appeal period. In June 2009, the Veteran submitted a VA Form 21-8940 stating that his back and knees prevent him from securing or following a substantially gainful occupation. He last worked full time on August 2007. Social Security Administration (SSA) records show that the Veteran was found disabled due to his lumbar spine disability. Based on a large volume of relevant medical evidence and a thorough interview with the Veteran to establish the requirements of his prior work, SSA found the Veteran had a high school education, did not speak English, had work experience in the "skilled or semiskilled" retail trade as a manager, and that his work had required medium exertion. His residual functional capacity following his recent back surgery reduced him to light functional capacity. SSA found he was unable to do past relevant work and that his past relevant work was not transferable. He was found disabled due to lumbar discogenic disease effective August 31, 2007. An August 2015 VA examiner noted that the Veteran's low back limitation of ROM due to his service connected back condition and pain accompanies effort to bend or twist his trunk, to lift and carry objects. He is limited in lifting, pushing, pulling, or carrying objects that weigh 10 or more pounds, or doing activities that require rapid trunk movement, repetitively going from sitting to standing and vice versa and limited to working a sedentary type job and should not participate in high impact activities. An October 2020 VA examiner noted that the Veteran's pain limits his ability to walk without a cane and he cannot lift heavy objects. The examiner also noted that due to the Veteran's knee condition he needs his cane to ambulate. The evidence shows that the Veteran's back disability prevents him from doing the medium exertional level work that in which he has experience and training. SSA records also show that his work experience is not transferable. SSA decisions are not controlling but are pertinent to determining a veteran's ability to engage in substantially gainful employment. Martin v. Brown, 4 Vet. App. 136 (1993); Murincsak v. Derwinski, 2 Vet. App. 363, 369-370 (1992). In this case, the Board finds that the record supports the SSA's finding and that the evidence is at least in equipoise that his service-connected back disability prevents him from securing and following substantially gainful work. TDIU is granted effective June 10, 2009. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony L. Hines 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.