Citation Nr: 22017171 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 20-01 017 DATE: March 24, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The probative evidence of record shows that the Veteran's service-connected conditions preclude him from following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to June 1985. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. VA will grant a TDIU when the evidence shows that a Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A schedular TDIU is available where: there is only one service-connected disability, and it is rated at 60 percent or more; or there are two or more disabilities, with at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this case, the Veteran meets the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). He is service connected for bilateral hearing loss at 30 percent from June 21, 1985, 40 percent from October 10, 2017, and 50 percent from June 19, 2018; lumbosacral strain at 20 percent from October 10, 2017, and 40 percent from June 19, 2018; Meniere's syndrome at 10 percent from October 10, 2017; tinnitus at zero percent from June 21, 1985, and 10 percent from October 10, 2017; and radiculopathy of the bilateral right and left lower extremities at 10 percent from October 10, 2017. As of June 19, 2018, his combined rating is 80 percent. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317. Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Court of Appeals for Veterans Claims (Court) recently issued a decision concerning TDIU. The Court noted that TDIU claims have two components that must both be met for a grant of TDIU, both economic and non-economic. As noted above, the economic consideration is a determination if the Veteran has earned annual income that does not exceed the poverty threshold for one person. The second component is determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran's history, education, skill, and training; whether the Veteran has the 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 to include factors including but not limited to the Veteran's limitations concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue to include factors including but not limited to the Veteran's limitations, if any, concerning memory, concentration, 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). Addressing the economic component of TDIU, the probative lay and medical evidence indicates that the Veteran ceased work in August 2012. In a June 2018 application for compensation based on individual unemployability the Veteran confirmed that he stopped working as a mail handler for the United States Postal Service in August 2012. October 2007 medical treatment records noted that the Veteran had worked as a mail handler for 17 years. Addressing the noneconomic component of TDIU, the Veteran completed high school and nearly completed one year of college. He did not report any other training or education. He stated that his service-connected disabilities, particularly his back condition, Meniere's syndrome, and bilateral hearing loss prevented him from obtaining or maintaining gainful employment. In October 2017 the Veteran underwent a VA examination to evaluate his hearing loss. The examiner determined that the Veteran's hearing loss and tinnitus made it difficult for the Veteran to communicate in the workplace. He underwent another VA examination for hearing loss in January 2018. The examiner noted that the Veteran's hearing loss impacted his ability to work as it made it difficult for him to communicate. The examiner determined that the Veteran's tinnitus did not affect his functional ability. He was provided with another VA examination in July 2018. The examiner found that the Veteran's bilateral hearing loss and tinnitus resulted in difficulty with communication. In a June 2020 VA examination the examiner noted that the Veteran's hearing loss made it difficult for him to communicate at work, but his tinnitus did not affect his work. The Veteran was provided with a VA examination to evaluate his back disability in January 2018. He was diagnosed with lumbosacral strain, spondylolisthesis, and IVDS. The Veteran reported that he could not bend over to put on his socks or shoes and noted that he could not sit or stand for long periods. He could also not carry heavy objects. The Veteran was noted to have moderate radiculopathy of both lower extremities associated with his back condition. The examiner noted that the Veteran's IVDS caused symptoms that required bed rest required by a physician for less than one week. The examiner determined that the Veteran's back condition limited prolonged walking, standing, sitting, bending over, heavy lifting, and carrying. The Veteran was provided with another back VA examination in July 2018. The examiner noted that the Veteran's IVDS caused symptoms that required bed rest required by a physician with a total duration of at least six weeks. The functional impact of his back condition was that the Veteran struggled with bending, lifting, and carrying a load. In January 2018 the Veteran underwent a VA examination for a vestibular condition. The examiner noted vertigo symptoms several times a year and found that the Veteran needed rest whenever he had a flareup. In a July 2018 VA examination, the examiner determined that the Veteran's vestibular condition did not affect his ability to work. A July 2018 VA examination for peripheral neuropathy noted that the Veteran's radiculopathy condition did not affect his ability to work. A hearing was held in February 2021. The Veteran stated that his combined service-connected disabilities forced him to retire from the United States Postal Service in August 2012. The Veteran stated that he drove a forklift at the USPS for nearly 20 years. Due to his back condition, he could not sit for prolonged periods on the forklift or climb onto and off the forklift. The Veteran stated that the back pain caused him to miss nearly two and a half months of work in the last 12 months that he worked. The Veteran then related that his radiculopathy of the bilateral lower extremities and Meniere's syndrome caused unsteadiness. He stated that if he did not hold onto things he would fall due to the numbness in his limbs and the dizzy spells. The Veteran stated that he had difficulty communicating at work because his hearing aids were designed with a safety mechanism that caused it to shut off if the noise levels in the environment became too high. The Veteran also noted that he would not be able to function well in sedentary employment as he could not even sit for prolonged periods of time. In a recent decision, the Court noted that the VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each Veteran's education, training, and work history." Id. at 149-150. Merriam-Webster online dictionary defines "sedentary" as (a) "doing or requiring much sitting" or (b) "not physically active." https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis. The Board finds that the Veteran is not capable of substantially gainful employment, including sedentary employment. Medical treatment records regarding his back disability indicate that the Veteran would not be able to perform any physical duties. He is shown to be unable to lift, bend, stand, or walk for prolonged periods due to his back disability. The July 2018 VA examination also indicated that the Veteran's IVDS was severe enough to necessitate 6 weeks of bed rest prescribed by a physician. The January 2018 VA examination for spine conditions also noted that the Veteran was not capable of prolonged sitting. The Veteran additionally stated in the February 2021 hearing that he was incapable of sitting for more than 30 minutes at a time. The Veteran has reported that his vestibular condition and radiculopathy make him unsteady and a fall risk. He stated that standing up too quickly triggered lightheadedness and that the moderate numbness associated with his radiculopathy condition caused him to be unsteady. In totality, these symptoms preclude the Veteran from most forms of employment both physical and sedentary. The evidence also indicates that the Veteran does not have education, experience, or training in other fields and would not be able to transition effectively into even a sedentary work environment. The Veteran has only had work experience in a more physical job. He worked in the postal service for 17 years as a mail handler and there is no indication that he has training or experience in other fields. The Veteran stated that he drove a forklift while working at the USPS and did not indicate that he performed any administrative or clerical duties while employed there. Based on his work history and education level, the realistic chance of him obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU are met. (Continued on the next page) Finally, to be as favorable as possible to the Veteran, the Board will allow the agency of original jurisdiction (AOJ) to assign the effective date for the grant of TDIU in the first instance both to take account of any newly implemented rating and to make as complete a record as possible so the Veteran can appeal the effective date assigned by the AOJ if he is not satisfied with it. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an AOJ decision, such an argument is unavailing unless a notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating"). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.