Citation Nr: 22017535 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-13 585 DATE: March 25, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran's service-connected disabilities meet the preliminary rating criteria required in 38 C.F.R. § 4.16; and resolving reasonable doubt in the Veteran's favor, the combined effect of his service-connected disabilities renders him unable to secure and follow a substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.400, 4.15, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1982 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2017 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this matter in December 2017, April 2020, January 2021, and July 2021 for additional development. In July 2021, the Board remanded the matter to obtain updated VA treatment records. After completing the necessary development, the RO readjudicated the matter, issued an August 2021 supplemental statement of the case denying entitlement to TDIU, and returned the matter to the Board for appellate adjudication. The Board notes that the Veteran was previously represented by a private attorney. Since the private attorney is not accredited to represent claimants before VA, clarification letters were sent to the Veteran in December 2021 and January 2022, in which the Veteran was notified that if he did not respond to the letters within 30 days, the Board will assume that he wants to represent himself. Since the Veteran did not respond to these letters, the Board assumes that the Veteran wishes to proceed pro se, hence, he is currently unrepresented. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body 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), 4.15. TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU should be considered based on the appealed increased rating claim. See Rice, 22 Vet. App. at 453 (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). In this case, the record shows that the Veteran has not independently or separately asserted entitlement to TDIU. However, at the May 2017 Board hearing, the Veteran testified that he is unable to work due to his service-connected disabilities. Since the May 2017 Board hearing addressed the issues of entitlement to increased rating for the service-connected radiculopathy of the left lower extremity and the service-connected dysthymic disorder, the Board raised a claim of entitlement to TDIU as a part of the increased rating claims and remanded the matter to the RO for additional development in the December 2017 decision. As noted above, the matter was remanded again in April 2020, January 2021, and July 2021 for additional development. After completing the additional development, the RO issued a September 2021 supplemental statement of the case denying entitlement to TDIU and returned the matter to the Board for appellate adjudication. The Board notes that the appeal period for the radiculopathy left lower extremity begins from January 26, 2010, one year prior to the filing of the increased rating claim; and for dysthymic disorder begins from June 5, 2011, one year prior to the filing of the increased rating claim. See 38 C.F.R. § 3.400(o)(2). Since the claim of TDIU is being considered as part of increased rating claims of the service-connected radiculopathy left lower extremity and dysthymic disorder, the appeal period of TDIU is January 26, 2010, which is earliest of the two appeal periods of increased rating claims. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: spinal fusion T10-L3 with burst fracture at L-1 (rated as 30 percent disabling from September 1, 1988); chronic dysthymic disorder associated with spinal fusion (rated as 100 percent disabling from September 26, 1990, 10 percent disabling from November 1, 1990, and 30 percent disabling from June 5, 2012); left lower extremity radiculopathy associated with spinal fusion (rated as 10 percent disabling from June 9, 2003, and 20 percent disabling from December 18, 2019); bilateral tinnitus (rated as 10 percent disabling from June 9, 2003); and bilateral hearing loss (rated as noncompensable from June 9, 2003). The Board notes that the Veteran's service-connected spinal fusion, chronic dysthymic disorder, and left lower extremity radiculopathy are disabilities of a common etiology. As the Veteran's combined evaluation was 60 percent from June 5, 2012 (based on the disabilities of common etiology), and 70 percent from December 18, 2019, he meets the preliminary schedular criteria for a TDIU from June 5, 2012. 38 C.F.R. §§ 4.16, 4.25. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The April 2017 Rehabilitation Needs Inventory reflects the Veteran attended college in 2015 to obtain an associate degree for medical assistant / X-ray technician. However, there is no indication in the evidence of record whether the Veteran completed this degree. The April 2017 Counseling Record-Narrative Report reflects the Veteran worked as a medical assistant from August 2016 to December 2016, but he had to leave this job because he did not have X-ray technician certification. Nevertheless, the April 2017 Counseling Record-Narrative Report also reflects the Veteran has certification for medical assistant duties. The May 2020 TDIU Form 21-8940 does not reflect whether the Veteran has any other training or schooling. Hence, as far as the Veteran's education and training is concerned, the record reflects that he has a high school diploma and certification for medical assistant duties. As far as the Veteran's employment history is concerned, in the May 2020 TDIU Form 21-8940, the Veteran indicated that he had full time employment until September 1, 2018. So far, his highest earned income in one year was $38,000.00 when he worked as a truck driver in 2009. The April 2017 Counseling Record-Narrative Report reflects the Veteran worked as a building custodian from 2011 to 2014, as a warehouse worker from 2014 to 2016, and as a medical assistant working in the front and back office from August 2016 to December 2016. The evidence of record from 2020 reflects the Veteran was raising chicken and was working as a beekeeper. However, the record reflects he had to sell his chickens because this profession, including beekeeping was a physically demanding job, which he could not do because of the service-connected lower back disability. Hence, the Board finds the Veteran has a history of working physically intensive jobs as well as working jobs that were less intensive physically. As far as the impact of the Veteran's service-connected disabilities on his functionality is concerned, the Board finds that the evidence of record reflects the combined physical and mental effects of these disabilities impact the Veteran's ability to secure and follow a substantially gainful occupation. During the August 2010 VA examination for hearing loss, the examiner noted the functional impact as difficulty for the Veteran to understand speech in all situations. The examiner noted the Veteran had trouble hearing his coffee maker alarm and dog collar making sound. In the August 2010 VA examination report for the Veteran's lower back condition, the examiner noted that the Veteran had constant daily pain is lower back with radiation to the left buttock and left leg. The examiner noted that the Veteran's daily activities, including sports, exercise, recreation, and traveling are moderately affected by the service-connected lower back disability. The examiner also noted that the Veteran has decreased mobility and has pain with lifting and carrying. In the February 2011 VA examination report for back condition, the examiner noted the Veteran's lower back pain with radiation to the left lower extremity. The examiner noted the pain was constant and mild to moderate in nature and it becomes severe occasionally after heavy lifting or driving, sitting still, or standing for long periods of time. The examiner noted the Veteran's reports that he could not work as a truck drive since 2009 due to his back condition. In the March 2012 examination report for back condition, the examiner noted the Veteran was working as custodian and had a lot of pain in lower back with any major activities and lifting. In the September 2012 VA examination report for mental disorder, the examiner noted the diagnosis of dysthymic disorder and stated that the Veteran experiences depressed mood daily but is able to engage in activities he enjoys until his pain becomes significant. The examiner noted that the Veteran experiences anxiety all the time and avoids crowds and traffic. In the April 2017 opinion, a Vocational Rehabilitation Counselor stated that the Veteran more suitable for sedentary job with accommodations that would not irritate or aggravate these disabilities. At the May 2017 Board hearing, the Veteran testified that he cannot walk when has numbness in his leg. He also testified that he has lack of sensation in his left lower extremity. He asserted that he cannot drive for more than 30 minutes and have to pullover until the pain subsides. The Veteran also testified that due to dysthymic disorder he does not get along with others well, so he stays alone. In a December 2019 VA Individual Unemployability statement associated with a Peripheral Nerve Conditions Disability Benefits Questionnaire (DBQ), it was noted by the examiner that it is at least as likely as not (50 percent or greater probability) that related to the Veteran's service-connected condition, he was able to perform the following in a normal eight hour work day: sedentary work (exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met.) In the January 2020 mental disorders DBQ, the VA examiner noted the diagnosis of persistent depressive disorder and chronic anxious distress associated with the service-connected disability of spinal fusion. The examiner noted the symptoms of dysphoric moods, crying spells, hopelessness, loss of interests, irritability, diminished sense of pleasure, social withdrawal, excessive worry and restlessness, concentration difficulties, difficulty staying on tasks/following through on instructions. The examiner noted the Veteran was not currently employed. He was last employed in September 2018 and worked as a medical assistant. The Veteran stated that he had been working with a friend on the side, making beehives and selling them. In a January 2020 VA Individual Unemployability statement associated with the January 2020 mental disorders DBQ, the examiner noted that the Veteran has difficulty attending to or is easily distracted from the task at hand. The examiner also noted that the Veteran has difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task. In the May 2020 VA TDIU Form 21-8940, the Veteran reported that he has constant pain in his lower back that prevents him from securing or following any substantially gainful occupation. He stated that he last worked full time September 1, 2018. However, he also stated that he became too disabled to work March 1, 2000. He said that the most he ever earned was in 2009 when he made $38,000 working as a truck driver. In the July 2020 VA examination report for peripheral nerves conditions, the examiner stated that due to the left lower extremity radiculopathy, it is difficult for the Veteran to run, walk, stand long periods of time, and climb ladders or stairs, which lead to issues with him completing physical tasks at work. In the July 2020 mental disorder examination report, the examiner did not note any functional impairment of the dysthymic disorder, however, the examiner noted that the Veteran stopped working in 2018 due to physical pain and having to be on his feet or sit for hours. The examiner also noted that the Veteran began raising chickens and worked as beekeeper, however, he had to sell chickens because these were physically demanding jobs that he could not do due to his service-connected lower back disability. In the October 2020 opinion regarding functional impact of hearing loss, the examiner noted that the Veteran's high frequency hearing loss may result in difficulty understanding speech in difficult listening environments and in the presence of background noise. With amplification and reasonable accommodations, his hearing loss and tinnitus should not significantly affect vocational potential or limit participation in most work activities. In the November 2020 opinion based on the Veteran's lower back disability and left lower extremity radiculopathy, the examiner stated that these disabilities less likely as not preclude the Veteran from engaging in all types of substantially gainful employment. However, the examiner noted that due to safety concerns and in order to prevent further physical deterioration and worsening pain, the Veteran's service-connected conditions (spinal fusion, T10-L3, with burst fracture at L-1; and radiculopathy, left lower extremity associated with spinal fusion, T10-L3, with burst fracture at L-1) do warrant significant limitations and/or restrictions regarding certain activities, to include: not operating heavy machinery, not walking on loose uneven surface, not lifting of objects from the floor, no lifting overhead, no bending below the waist level etc. In the May 2021 VA examination report for hearing loss, the examiner noted the Veteran's reports that he has trouble hearing his girlfriend who spoke softly. He reported using the phone on the right ear because he can hear better out of that ear and has difficulty hearing the television. The Veteran also reported that he misses certain sounds like the alarm on the coffee maker. The examiner stated that the Veteran should be wearing properly fit bilateral amplification (including real ear measures) for at least 10-12 hours per day. The examiner opined that with properly fit amplification and confirming consistent wear time using the devices data logging, the Veteran would not have any significant work restrictions for hearing loss or tinnitus. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the VA adjudicator must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). As noted above, the Veteran has high school diploma and a certification in medical assistant work. However, the evidence of record also suggests that the Veteran did not complete the associate degree in medical assistant / X-ray technician. The work history indicates that he had labor intensive jobs such as truck driving, working in warehouse, working in farms raising chickens, and making beehives. The Veteran also worked as a custodian of buildings and as a medical assistant working in the front and back of the office, which are probably light to medium jobs requiring some lifting or carrying objects, and might not be sedentary employments. As discussed in Withers v. Wilkie, 30 Vet. App. 139 (2018), the term "sedentary employment" is not defined in statute or regulation. "Sedentary" means "doing or requiring much sitting" or "not physically active." Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary 1687 (32nd ed. 2012). The meaning of sedentary work is to be determined on a case-specific basis. Since the Veteran has worked as a custodian of a building and a medical assistant, which probably need physical activities in moving or picking up items, such as medical equipment etc. As noted above, the VA examiners have opined that the Veteran could perform sedentary jobs, however, as noted by the examiner in the November 2020 opinion that due to safety concerns and in order to prevent further physical deterioration and worsening pain, the Veteran's service-connected conditions (spinal fusion, T10-L3, with burst fracture at L-1; and radiculopathy, left lower extremity associated with spinal fusion, T10-L3, with burst fracture at L-1) do warrant significant limitations and/or restrictions regarding certain activities, to include: not operating heavy machinery, not walking on loose uneven surface, not lifting of objects from the floor, no lifting overhead, no bending below the waist level etc. Furthermore, the evidence of record reflects the Veteran has constant lower back pain, and when the Veteran has increased pain, his distress and dysthymic disorder also increase in severity. Hence, the Board finds that the evidence of record is in favor of the claim or at least there is approximate balance of positive and negative evidence in favor and against the finding that the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt should be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt should be resolved in favor of the claimant. See 38 C.F.R. § 3.102. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. Id. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Id. Consequently, resolving reasonable doubt in the Veteran's favor, the Board finds that the combined effect of the Veteran's service-connected disabilities, including spinal fusion T10-L3 with burst fracture at L-1, chronic dysthymic disorder associated with spinal fusion, left lower extremity radiculopathy associated with spinal fusion, bilateral tinnitus, and bilateral hearing loss, renders him unable to secure and follow a substantially gainful occupation at least from September 2018, when his last full-time employment ended. Hence, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.