Citation Nr: 22013440 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-18 433 DATE: March 9, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is granted. REMANDED An initial compensable rating for lumbar spine degenerative disc and joint disease is remanded. An initial compensable rating for right lower extremity radiculopathy prior to October 27, 2016, and higher than 10 percent, thereafter, is remanded. An initial compensable rating for left lower extremity radiculopathy prior to October 27, 2016, and higher than 10 percent, thereafter, is remanded. FINDING OF FACT Throughout the course of the appeal, the Veteran's service-connected disabilities preclude him from obtaining or maintaining gainful employment consistent with his education and experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Air Force from July 1967 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in June 2020. During his hearing, the Veteran raised the issue of entitlement to a TDIU, which is part and parcel of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). During the period on appeal, the Veteran has a combined disability rating ranging from 60 percent to 70 percent. This includes bilateral knee instability, bilateral knee degenerative joint disease, left ring and little finger injury residuals, bilateral lower extremity radiculopathy, and lumbar spine degenerative disc and joint disease. The disabilities all relate to the musculoskeletal system, including radiculopathy associated with the lumbar spine disability, and are therefore considered a single disability for TDIU purposes. Therefore, the Veteran meets the schedular criteria for a TDIU. The central inquiry is determining whether a TDIU is warranted 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19. In a February 2015 TDIU application form, the Veteran reported that he worked as a postal worker/mail carrier from 1982 to 2006. He had previous work as a brick mason and social worker and had a four year college education. Regarding functional impact, private treatment records from June 2007 show the Veteran reported being forced into early retirement due to his low back pain. A November 2007 VA examiner stated that the Veteran's bilateral knee disabilities resulted in severe occupational impairment, without further specificity. An additional examination in January 2008 noted moderate impairment with occupational and daily activity. Social Security Administration (SSA) records from September 2008 show the Veteran reported being able to stand for about 30 minutes, which was confirmed by the examining physician. An April 2009 VA examination found that the Veteran's knee disabilities limited standing and prolonged walking. A March 2015 VA examination noted that the Veteran is right-handed, and that his left finger disabilities limited grip, lifting, pushing, and pulling. An April 2015 VA examination found that his knee disabilities limited excessive walking, climbing steps, bending, and heavy lifting. An October 2016 VA examination noted that his low back disability prevented prolonged walking. The Board finds that the functional impairment outlined above would preclude the Veteran from engaging in his prior work as a postal worker or brick mason, as the physical requirements from those occupations include lifting, carrying, and prolonged walking. In making this determination, the Board acknowledges that the Veteran's lumbar spine disability and associated radiculopathy were service-connected on a secondary basis due to aggravation from his knees. The ratings assigned to those disabilities were based on determinations regarding the difference between his pre-aggravation baseline level of disability and the post-aggravation level of disability. By extension, only a portion of the functional impairment associated with those disabilities is actually service-connected. Nevertheless, when viewed alongside the impairment from his knees and fingers, the overall level of impairment remains inconsistent with his prior work experience. Moreover, while the Veteran has prior employment as a social worker, which does not have the same physical demands, he has not engaged in any such work since at least 1982, or approximately 40 years. Therefore, the Board finds that his education and experience in that field is not sufficient to sustain gainful employment when viewed alongside his disabilities. In sum, the Board concludes that the Veteran's service-connected disabilities preclude him from obtaining or maintaining gainful employment consistent with his education and experience, and a TDIU is warranted. REASONS FOR REMAND Higher rating for lumbar spine degenerative disc and joint disease Higher rating for right lower extremity radiculopathy Higher rating for left lower extremity radiculopathy During his Board hearing, the Veteran asserted that his lumbar spine and lower extremity radiculopathy conditions have increased in severity since he was last examined by VA in 2016. VA treatment records from August 2020 corroborate his assertions, and additional records form June 2021 show he sustained a fall two months earlier. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of these disabilities, and his updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability and associated lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms associated with his lumbar spine and lower extremity radiculopathy. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.