Case 22004124

Summary

The veteran, who served from March 1975 to March 1997, appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Board previously remanded the TDIU claim, and the RO subsequently granted service connection for a lumbar spine disability and readjudicated the TDIU. The veteran is service-connected for a lower back disability (20%), bilateral lower extremity radiculopathy (20% right, 10% left), nephrolithiasis and hypertension (30%), tinnitus (10%), and left ear sensorineural hearing loss (noncompensable). Since March 2015, the veteran has received a 70% combined rating. The Board found that the veteran's combined service-connected disabilities, along with his educational background and employment history, likely preclude him from substantially gainful employment. Evidence supporting the TDIU claim included the veteran's own statements about his inability to work since 2002 due to orthopedic and kidney disorders, VA DBQs noting limitations from sciatica and back disability impacting work, and a private vocational assessment concluding his combined conditions render him unemployable. The Board found the totality of the evidence, including medical findings, lay assertions, and objective evidence, warranted a TDIU grant. Therefore, a TDIU is granted.

Rationale

Veteran meets schedular criteria for TDIU from March 6, 2015.; Combined disabilities, education, training, and employment history preclude substantially gainful employment.; Private vocational assessment supports unemployability.

Full Decision Text

Citation Nr: 22004124
Decision Date: 01/26/22	Archive Date: 01/26/22

DOCKET NO. 17-09 854
DATE: January 26, 2022

ORDER

Entitlement to a total disability rating based on an individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDING OF FACT

The probative evidence of record shows that the Veteran's service-connected disabilities, in the aggregate, likely preclude him from securing or following substantially gainful employment.

CONCLUSION OF LAW

The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1975 to March 1997. 

The issue is before the Board of Veterans' Appeals (Board) on appeal from September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The rating decision of September 2014 granted service connection for sciatica, left leg with an evaluation of 10 percent disabling, effective December 30, 2013, and found that new and material had not been received to reopen a claim for connection for a lower back disability.  

The Veteran was scheduled for a hearing before a member of the Board in November 2019.  However, in October 2019, his attorney provided Waiver of BVA Hearing and a Motion for Record to Remain Open for 60 days to Submit Evidence, in lieu thereof.  Thus, the request for a hearing is considered withdrawn.  38 C.F.R. § 20.704 (e).  

The issue was before the Board in February 2020 and August 2021.  In February 2020, the Board reopened the claim for service connection for the lower back disorder, assumed a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009), since it was reasonably raised by the record, and remanded the issues to the RO for further development.  The August 2021 Board decision granted service connection for a lumbar spine disability and remanded the TDIU.  The RO was instructed to implement the Board's grant for the lumbar spine disability and then readjudicate the TDIU claim.  The grant was implemented in a September 2021 rating decision, and in October 2021, the RO issued a Supplemental Statement of the Case, adjudicating the TDIU.  The Board finds that there has been substantial compliance with the remand directives.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

A TDIU is warranted.    

Total disability exists when there is any impairment, 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).  A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities.  If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).  Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability to meet the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a).  

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran's education, training, and work history.  Pederson v. McDonald, 27 Vet. App. 276 (2015).

Here, the Veteran is service-connected for the following: a lower back disability, rated as 20 percent disabling since December 30, 2013; right lower extremity radiculopathy, associated with lower back disability, rated as 
 unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran's education, training, and work history.  Pederson v. McDonald, 27 Vet. App. 276 (2015).

Here, the Veteran is service-connected for the following: a lower back disability, rated as 20 percent disabling since December 30, 2013; right lower extremity radiculopathy, associated with lower back disability, rated as 20 percent disabling since December 30, 2013; left lower extremity radiculopathy, rated as 10 percent disabling; nephrolithiasis and hypertension, rated as 30 percent since January 28, 2009; tinnitus, rated as 10 percent since March 6, 2015; and left ear sensorineural hearing loss, rated as noncompensable disabling since March 6, 2015.  Since March 6, 2015, the Veteran is in receipt of a 70 percent rating. Although the Veteran is not in receipt of a singular 40 percent rating, his back and radiculopathy of the bilateral lower extremity are considered a single disability.  38 C.F.R.§4.16 (a). Therefore, the Veteran meets the initial criteria for a schedular TDIU from March 6, 2015. 

In support of his claim, the Veteran submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in August 2019 and attributed his lack of gainful employment to his orthopedic and kidney disorders.  He indicated that he had been undergoing doctor's care.  He also indicated that his above disabilities affected his full-time employment since February 1, 2002.  The date that he last worked was March 1, 2005, and the date that he became too disabled to work was February 1, 2005.  He indicated that he left his last employment because of his disability.  

The Veteran reported that he had not tried to obtain employment since he became too disabled to work.  He indicated a two-year college education and not having had any other education and training before and since he became too disabled to work.     

Additionally, of record are various VA Disability Benefits Questionnaires (DBQs) finding that a service-connected disability, on its own, impacted the Veteran's ability to work.  For example, a VA Peripheral Nerves Condition BDQ of January 2017 found that the Veteran's sciatica impacts his ability to work as a handyman since it limits his bending and lifting "from low back problems."

September 2019 and February 2020 Back (Thoracolumbar Spine) Conditions DBQs found that the Veteran's back disability impacted his ability to work.  The September 2019 examination specifically noted that the Veteran was limited in sitting, standing, walking, running, and climbing.  The February 2020 examination found that the Veteran's bending was worsened, while he was limited to walking (greater than 1 mile), and he lost 0-1 week of work in the last 12 months because of degenerative arthritis of the spine IVDS, and radiculopathy bilateral lower extremities.

A VA Kidney Conditions (Nephrology) DBQ of September 2019 found that when the Veteran's kidney stones are present, he is in severe pain and distress until it passes.  Lastly, the January 2020 hearing loss DBQ found that without the help of hearing aids, the Veteran was forced to ask for repetition, and as a result, was often frustrated.  

Additionally, of record is a November 2021 private vocational assessment by F. F., M. Ed., CRC, Certified Rehabilitation Counselor.  After a review of the case file and interview with the Veteran, F.F. opined that his service-connected nephrolithiasis, back, right lower extremity radiculopathy, and sciatica of the left leg, precluded him from securing and following substantially gainful employment, since at least 2010.  His tinnitus, since at least March 2015, also further precluded him from securing and following substantially gainful employment.  Based on the above-said findings, F. F. concluded that "[w]hen the effects of the Veteran's service-connected disorders are considered together, the synergy of the conditions creates a greater impact on his ability to work than when these limitations are considered individually.  The overall impact of his service-connected disabilities and their associated symptoms cause
 Veteran, F.F. opined that his service-connected nephrolithiasis, back, right lower extremity radiculopathy, and sciatica of the left leg, precluded him from securing and following substantially gainful employment, since at least 2010.  His tinnitus, since at least March 2015, also further precluded him from securing and following substantially gainful employment.  Based on the above-said findings, F. F. concluded that "[w]hen the effects of the Veteran's service-connected disorders are considered together, the synergy of the conditions creates a greater impact on his ability to work than when these limitations are considered individually.  The overall impact of his service-connected disabilities and their associated symptoms cause such a negative vocational impact that the Veteran is left unemployable."

The Board finds that a TDIU is warranted.  Reviewing the totality of the evidence, including the medical findings detailing the severity of the Veteran's service-connected disabilities, the competent and credible lay assertions of unemployability due to limitations caused by said disabilities, and the cumulative objective evidence of record, the Board finds that the Veteran's service-connected disabilities, in the aggregate, coupled with his educational/training background and employment history, likely precludes him from securing and following any substantially gainful employment. A TDIU is granted.

 

 

Roya Bahrami

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Stevens, 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.