Citation Nr: 21042702 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-39 757A DATE: July 13, 2021 ORDER A total disability rating due to individual unemployability is granted. FINDINGS OF FACT 1. The Veteran has two or more service-connected disabilities, one of which is rated at 40 percent or more, and which combine to 70 percent or more. 2. The preponderance of the evidence establishes that the Veteran's service-connected disabilities render him unable to secure or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating for individual unemployability due to service-connected disabilities have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1967 to February 1969. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at two different hearings, one in April 2020 and another in January 2021. As the matter was heard by two different Veterans Law Judges, the matter will now be addressed by a three-Judge panel that includes both Judges who conducted the Board hearings. See 38 C.F.R. § 20.106. A May 2021 letter offered the appellant the opportunity to have a hearing before the third Judge of the panel, and, in a June 2021 filing, the Veteran's representative, on behalf of the Veteran, waived the Veteran's right to appear at the additional hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, the panel will now adjudicate the appeal. The Veteran seeks a total disability rating due to individual unemployability (TDIU). A TDIU may be assigned if 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. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU the Veteran's service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) 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. Id. The Veteran's service-connected disabilities include lumbar spine degenerative disc and joint disease, rated at 40 percent; adjustment disorder with depressed mood and sleep impairment, rated at 30 percent; right and left lower extremity radiculopathy, each rated at 20 percent; tinnitus, rated at 10 percent; bilateral hearing loss, assigned a noncompensable evaluation; and, a back scar from surgery, assigned a noncompensable evaluation. As there is a disability rated at 40 percent and the combined rating is 70 percent or more, the first criterion under 38 C.F.R. § 4.16(a) is satisfied. The Board next considers whether the Veteran is unemployable. A Veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one 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. Ray v. Wilkie, 31 Vet. App. 58, 7273 (2019). In evaluating a Veteran's ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16(a). After review of all the evidence of record, the Board finds that entitlement to a TDIU is warranted. The Veteran worked as a career firefighter from 1981 until 2000, when he medically retired. Since 2000 he has been in receipt of Social Security Disability. Before 1981, his prior jobs were in construction. He holds a high school degree. A November 2020 employability evaluation from a certified vocational rehabilitation counselor concluded that the Veteran is "functionally compromised to the extent that both sedentary and light occupational bases would offer no options for work." The counselor noted that a March 2014 spine examination found the Veteran unable to walk more than 3 minutes, stand more than 10 minutes, sit more than 15 minutes, or lift more than 5 to 10 pounds. The November 2020 evaluation remarked that "[i]f the Veteran exceeds his limited walking distance, he has to do floor exercises to return to function[,] which could in no way be accommodated in the workplace." In response to an October 2014 VA examiner's opinion that the Veteran's radiculopathy would not preclude him from sedentary employment, the November 2020 vocational rehabilitation counselor noted that the Veteran "is unable to sit in a conventional home or office straight chair" and instead reclines, which "would preclude him from sedentary work." Additionally, the Veteran has reported in a July 2014 statement and at the April 2020 Board hearing that due to pain in his spine and legs he is awoken after only approximately 3 hours of sleep, causing sleep deprivation the next day. The November 2020 counselor remarked that "the Veteran's fatigue has caused him to fall asleep in unusual situations and would create the likelihood that this could happen to him on the job." The Veteran has personally related that he had to leave his firefighting career after an episode where he responded to a structural fire in complete equipment, "and when [he] came out [he] realized [he] was putting [him]self and the other firefighters in danger and was no longer able to do that type of work." Currently, he experiences episodes where he has to "walk twisted" for a few days until his back returns to normal; if he rides in a car for more than 3 hours, he will be bedridden for a couple of days after. He has very little feeling in his legs, and the pain is severe enough that he has gone to the emergency room several times to address it. In November 2020, he reported that his daily movement was walking 100 feet no more than four or five times. The evidence also reflects that the Veteran's adjustment disorder interferes with his ability to understand, persist at, and complete complex tasks, and that his hearing loss interferes with his ability to hear and understand others if they are not speaking near him. Thus, the preponderance of the evidence is sufficient to establish that the Veteran's service-connected disabilities together render him unable to secure and maintain substantially gainful employment. 38 C.F.R. § 4.16(a). (CONTINUED ON NEXT PAGE) Accordingly, a total disability rating due to individual unemployability is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16(a). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.