Citation Nr: 22040185 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-50 094A DATE: July 13, 2022 ORDER The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities render him unable to obtain or maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from October 1980 to August 1989. The instant matter is on appeal from an April 2018 rating decision. In March 2022, the Veteran testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. 1. The claim of entitlement to a TDIU The Veteran seeks a TDIU. He contends that his back disability with associated lower extremity radiculopathy renders him unable to obtain and maintain gainful employment. 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 non-exertional) 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 is presently in receipt of service connection for degenerative disc disease of the lumbar spine (40 percent since March 13, 2017), right lower extremity sciatic radiculopathy (40 percent from March 13, 2017, and 20 percent from January 11, 2019), right lower extremity femoral radiculopathy (20 percent from January 11, 2019), tinnitus (10 percent from March 13, 2017), and a surgical scar (noncompensable). Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent effective the date of his claim for a TDIU, March 13, 2017. 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 Veteran has reported a high school education with no additional training. He worked as a cook for the last ten or so years of his career. He worked as a cook at a deli from approximately 2011 to 2014. He worked as a cook for a fishery from approximately 2010 to 2011. Prior to the position with the fishery, he worked for the same deli for approximately four years, also as a cook. When he discharged from service, he reported employment as a truck driver and contractor at a refinery up until he reinjured his back and was forced to leave that position. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected back disability with resulting right lower extremity radiculopathies. The Veteran underwent a VA examination in March 2019 to assess the severity of these conditions. He reported chronic low back pain, stiffness, constant aching and throbbing, and sharp stabbing pain. He stated that his right foot goes completely numb, and his right leg gives out and experiences significant weakness. The Veteran endorsed flare-ups of the condition with increased severity of symptoms. Forward flexion was limited to 35 degrees with 25 degrees estimated during flare-ups. His radiculopathy caused moderate intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. Functional impairment was assessed to include difficulty with prolonged sitting or standing, bending or twisting, and any heavy lifting. He also experienced an unsteady gait and poor balance that required constant use of a cane. The Veteran has subjectively reported similar symptoms attributed to his service-connected disabilities. His leg and back pain made him frequently change between sitting or standing as he was unable to maintain either position for prolonged periods. He could not walk for long periods either. In his work as a cook, he was required to stand for long periods of time and lift heavy objects, including pots and pans, as well as bulk grocery supplies. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran has only a high school education with no additional training. He has spent the last portion of his career as a cook, which he can no longer perform as it requires him to sit, stand, and lift heavy objects, which is outside his capacity given his back disability and radiculopathies. While the earlier portion of his career was spent driving trucks and as a contractor at a refinery, he left the last position due to an exacerbation of his back injury, which rendered him unable to complete those job responsibilities. The Veteran has not reported other training or experience in another field that might be within his physical capacity at this time. Accordingly, a TDIU is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.