Citation Nr: 22015940 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 18-15 876 DATE: March 20, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1961 to July 1965. The Board denied this claim in March 2021, and the Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). In January 2022, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the March 2021 decision and remand the matters to the Board. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for a back disability, (intervertebral disc syndrome right foot drop secondary to laminectomy), evaluated at 60 percent disabling, effective February 9, 2001; right lower extremity radiculopathy, evaluated at 10 percent disabling, effective August 28, 2010; status post extensor tendon repair, right third finger, evaluated as noncompensable, effective May 16, 1994; and a scar associated with his intervertebral disc syndrome, evaluated as noncompensable, effective October 27, 2014. His total combined rating is 60 percent. The Board notes that despite having two or more disabilities, the Veteran does not have a combined rating of 70 percent. Nevertheless, this is not a bar to meeting the schedular criteria. In this regard, the Court upheld a finding that a Veteran with three service-connected disabilities, resulting from a single accident and yielding a combined rating of 60 percent, to meet the schedular criteria set forth in 38 C.F.R. § 4.16 (a) despite other unrelated service connected disabilities evaluated as noncompensable. Gary v. Brown, 7 Vet. App. at 230 (1994). Thus, as the Veteran has a single disability rated at least 60 percent disabling for the entire appeal period, the Veteran meets the schedular criteria for an award of TDIU benefits. Therefore, the remaining inquiry is whether such disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Military personnel records reflect the Veteran's military occupation specialty (MOS) was that of an airplane mechanic. In an application for unemployability submitted in January 2022, he reported that his back prevents him from maintaining a substantially gainful occupation. The Veteran indicated that he completed high school. He stated that he last worked full-time in 2010 as a state legislative representative. He additionally reported being a lobbyist and training in management. The evidence of record appears to show that the Veteran is unable to currently perform all of his activities of daily living due to his nonservice-connected neurocognitive disorder. Nevertheless, the Board may only consider whether his service-connected disabilities preclude employment. By way of background, the Veteran was afforded a VA examination in August 2010. At that time, it was noted that the Veteran retired by eligibility of age and duration of work. Subsequently, in March 2011, the Veteran he reported muscle aches from working hard. The Veteran presented for a VA examination in February 2015 to assess the current severity of his service connected IVDS, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported daily piercing, stabbing, and aching pain, radiates down leg, worse with sitting, riding in the car, walking long distances. When asked to describe the functional impact the Veteran's disability has on his ability to work, the examiner reported that the Veteran would trip due to his foot drop and would have to take breaks and sit. In May 2016, the Veteran submitted a private examination. The Veteran reported significant difficulty completing simple household chores, frequent stumbling while walking, and difficulty concentrating and focusing due to pain and fatigue. Further, he stated that even sedentary work is difficulty that is made worse with prolonged sitting. While working as a legislative representative for the United Mine workers, he was accommodated with special permission to alternate between sitting and standing at will and often took extra breaks to lie down. The examiner reported that he is only able to stand or sit, at most, 40 minutes before experiencing unbearable pain, walking limited to no more than a few minutes, and is unable to lift more than five pounds. In the course of an eight-hour day, the Veteran would be unable to stand, walk, sit, and/or stoop for less than 2 hours. He would be able to lift or carry less than 10 pounds, he would be required to leave early three or more days per month, would need a break more than once per day from normally scheduled breaks, and for more than 3 days per month, he would not stay focused for at least seven of an eight-hour workday. When his limited mobility, severe pain, impaired concentration, and physical limitations are factored in, the Veteran is more likely than not unable to maintain substantial gainful employment as a result of his service connected back condition. VA clinical records show that during the course of the appeal, the Veteran reported hobbies of fishing, watching movies, and computer games. Based on the evidence of record, taken as a whole, the Veteran's symptoms do not show that he is unable to obtain and maintain employment due to his service-connected disabilities. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiner and treatment providers, the Board does not consider this level of impairment as one that would preclude employment. The Board considered the Veteran's lay statements that his back disability and pain as well as his inability to concentrate make it difficult to work, as well as his current mental state. However, the Veteran is not service connected for any mental condition, so any impact his mental condition has on his ability to work cannot be considered. Importantly, after review of the evidence of record, the Board finds that the Veteran's functional limitations would not preclude employment that did not involve walking for extended periods of time, lifting heavy objects, required constant sitting without breaks, or involve strenuous physical activities. Although the Veteran reported difficulty working while a state legislator, he also reported that he was able to work so long as he was allowed to take breaks as well as switch between sitting and standing. As such, despite his limitations, the Veteran was capable of maintaining employment. Additionally, despite the private opinion, stating he is unable to work, the evidence does not demonstrate that he would be incapable of working the majority of the month, given he is able to take breaks as well as alternate between sitting and standing. Finally, despite reporting pain that prevents sitting for long periods of time or physical activity, the Veteran reported has consistently reported that he enjoys fishing, watching movies, and computer games, all which require prolonged periods of sitting. Overall, the Veteran is qualified through education and experience for a wide variety of positions, many of which would not require strenuous physical activity or constant sitting without breaks. He is more than qualified for such positions given that he has prior work as a state legislator and lobbyist. This type of work would also produce income above the poverty threshold. Based on the foregoing, the Board finds that the evidence persuasively weighs against finding that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. Thus, a TDIU is not warranted. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C. § 5107 (b). J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.