Citation Nr: A24043284 Decision Date: 08/02/24 Archive Date: 08/02/24 DOCKET NO. 210402-150324 DATE: August 2, 2024 ORDER Entitlement to total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's service-connected disabilities preclude him from being able to secure and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1986 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from a July 2020 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). In the April 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or their representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The Board notes that it has thoroughly reviewed the evidence of record in conjunction with this case. However, the Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Thus, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to total disability based on TDIU is granted. The Veteran contends that his service-connected disabilities render him unable to secure or maintain substantially gainful employment. April 2021 VA Form 10182. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply means 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; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Factors such as age or impairment by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). In this case, the Veteran is service connected for persistent depressive disorder, which is rated at 70 percent disabling, effective August 31, 2017. The Veteran is also service connected for the following disabilities: degenerative joint disease, lumbar spine, rated at 40 percent disabling; radiculopathy, left lower extremity, rated at 20 percent disabling; and, radiculopathy, right lower extremity, rated at 20 percent disabling. These disabilities bring the Veteran's combined disability rating to 90 percent, effective August 31, 2017. As such, the Veteran meets the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The Veteran also meets the economic component of entitlement to a TDIU by virtue of not working during the appeal period. Ray, 31 Vet. App. at 73. Of note, the RO conceded that the Veteran met these elements of entitlement to TDIU criteria in the rating decision on appeal. See 38 C.F.R. § 3.104(c). The remainder of the Board's analysis will, therefore, focus on the non-economic component of entitlement to TDIU. Ray, 31 Vet. App. at 73. The Veteran was afforded a VA peripheral nerves conditions examination in July 2020. The Veteran's diagnosis of bilateral lower extremity radiculopathy was noted. The VA examiner noted the Veteran's symptoms of moderate constant pain of the bilateral lower extremities, moderate paresthesias and/or dysesthesias of the bilateral lower extremities, and moderate numbness of the bilateral lower extremities. The VA examiner also found decreased sensation in the Veteran's bilateral lower legs, ankles, feet, and toes. The VA examiner determined the Veteran experiences moderate incomplete paralysis of his sciatic nerve and requires regular use of a back brace to help with support and mobility. The VA examiner opined that the Veteran's bilateral lower extremity radiculopathy affected his ability to work due to his lower leg pain, tingling, numbness, and difficulty with prolonged walking over 14 mile. The Veteran was also afforded a VA mental disorders examination in July 2020. The Veteran's diagnosis of persistent depressive disorder was acknowledged, with the notation that it is caused by pain associated with the Veteran's degenerative joint disease of the lumbar spine and bilateral lower extremity radiculopathy. The VA examiner opined that the Veteran experiences occupational and social impairment with reduced reliability and productivity. The VA examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, difficulty adapting to stressful circumstances including work or a work like setting, and suicidal ideation. The VA examiner noted that the Veteran is capable of managing his financial affairs. The VA examiner found that the Veteran's ability to understand and follow instructions is not impaired. The VA examiner determined that the Veteran experiences mild impairment with his ability to retain instructions, sustain concentration to perform simple tasks, respond appropriately to coworkers, supervisors, and the general public; and respond appropriately to changes in the work setting. The VA examiner opined that the Veteran's mental condition does not preclude occupational functioning in a sedentary, structured, solitary work environment that accommodates physical limitations. In support of his claim, the Veteran submitted an April 2021 Vocational Assessment completed by K.M.D., a Vocational Consultant. As set forth therein, the Veteran obtained his high school diploma, as well as an associate degree in Hotel and Restaurant Management and a certification in Medical Administration. The Veteran was last gainfully employed as a forklift driver from October 2014 to February 2016. The Veteran reported that he voluntarily left this position in February 2016 because of his inability to perform his job duties. The Veteran again attempted employment as a shipping and receiving clerk from March 2017 to June 2017, and from August 2017 to September 2017. The Veteran reported that he also left this position due to his inability to perform his job duties. The Veteran has not worked in any capacity since September 2017. In conducting their Vocational Assessment, K.M.D. interviewed the Veteran and reviewed his VA claims file, which includes his military personnel records and VA medical records. K.M.D. determined that the Veteran's jobs as a forklift driver and shipping and receiving clerk fall under the Dictionary of Occupational Titles' (DOT) definition of "medium" physical demand. K.M.D. found that the Veteran's service-connected disabilities more likely than not preclude him from meeting the basic requirements for employment, regardless of skill or exertion level. These basic requirements for employment include sustaining focus and attention for at least two hours at a time throughout the day, being able to follow short and simple instructions and recall work tasks without reminders, attending to work tasks and remain free from distraction or interruption from coworkers, consistently producing a certain, minimal amount of work while on the job; and attending work on a regular schedule, free from excessive absences or tardiness. K.M.D. opined that the Veteran would have difficulty with most, if not all, of these basic requirements due to the symptoms of his service-connected disabilities such as depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work-like setting, suicidal ideations, isolative tendencies, his inability to sit, stand, or walk for longer than 5 to 15 minutes at one time; and chronic and severe pain. K.M.D. found that the Veteran is unable to meet the requirements of sedentary, unskilled work and therefore he is unable to work in competitive work environments. The symptoms of his service-connected disabilities erode any transferable skills he acquired throughout his vocational history and make him unable to retain or execute any past transferable skills due to his significant difficulty in maintaining concentration, and subsequent difficulty completing complex tasks. Further, K.M.D. determined that the Veteran's service-connected disabilities negatively impact his ability to learn new skills due to impairments in concentration. In K.M.D.'s professional opinion, the Veteran is more likely than not unable to secure and follow any substantially gainful employment, to include unskilled sedentary employment, since at least January 2019 to the present, due to his service-connected disabilities. After careful and thorough consideration of the evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from being able to secure and maintain substantially gainful employment consistent with his occupational and educational history. Lynch, supra. The Board acknowledges that the July 2020 VA examiner did not find total occupational and social impairment. The Board, however, affords K.M.D.'s opinion more probative value. In rendering their opinion, K.M.D. interviewed the Veteran, thoroughly reviewed the Veteran's claims file, and conducted additional research. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a professional opinion). K.M.D.'s rationale for their opinion was thorough and consistent with the evidence of record. Accordingly, an award of TDIU is warranted. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.400, 4.16. DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Feely, Lauren E. 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.