210107-128859

• Court: Board of Veterans' Appeals
• Decided: March 31, 2021
• Docket: 210107-128859
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 03/31/21 Archive Date: 03/31/21

DOCKET NO. 210107-128859 DATE: March 31, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDING OF FACT

The Veteran meets the schedular criteria to be entitled to TDIU and his service-connected disabilities have prevented him from securing and following substantially gainful employment.

CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1957 to April 1960.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision in December 2020 by the Department of Veterans Affairs (VA) Regional Office (RO).

Entitlement to TDIU is granted.

TDIU may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, a veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Throughout this appeal, the Veteran has met the schedular criteria for TDIU.

In a December 2009 rating decision, the RO granted nonservice-connected pension after finding the Veteran unable to secure and follow a substantially gainful occupation due to disability. The evidence showed that the Veteran was “disabled due to multiple chronic and acute medical and mental conditions” including right shoulder acromioclavicular separation, carpal tunnel syndrome, right knee strain, right third metacarpal fracture, hernia repair; left carpal tunnel syndrome; left knee strain; left great toe fracture; bilateral hip conditions; respiratory condition; tinnitus; right thyroid mass; cervical spondylosis; dorsal strain with degenerative changes; lumbosacral strain; and psychiatric disorders. The Board notes that service connection has since been granted for a number of these disabilities, including: right shoulder acromioclavicular separation; right and left carpal tunnel syndrome; right knee strain; right third metacarpal fracture; status post hernia repair; left knee strain; left great toe fracture; and thoracolumbar strain.

Several VA examinations have noted the Veteran’s functional limitations regarding his service-connected disabilities. See generally March 2012 back VA examination (no heavy or bending work); January 2018 VA knee examination (limited to sedentary work); January 2018 VA shoulder examination (can do light work only); January 2018 VA back examination (limited to sedentary work); July 2020 VA back examination (unable to do work that requires lots of walking, standing, lifting); July 2020 VA medical opinion (Veteran is a right-handed man with recurrent tingling dysesthesias and hand pain following right carpal tunnel compression and does not presently have full use of his right hand); July 2020 VA hand and finger examination (difficulty grasping items); and July 2020 VA peripheral nerve examination (functional impact includes fine motor difficulty; gripping; will drop things).

Although the Veteran has a college education, he has had an inordinate number of jobs over many years, none lasting more than one year. In earlier TDIU applications, the Veteran reported that he is “too stressed out and constant severe (sic) pain from his service-connected orthopedic conditions” as the reasons for his unemployability.

In support of his application for Social Security Administration (SSA) disability benefits, the Veteran reported that his psychiatric disorders, left great toe, right knee, bilateral carpal tunnel, neck, and back limit his ability to work; however, his back, knee, and right hand were the “most notabl[e]” disabilities. He experienced pain when sitting, standing, and sometimes walking. SSA disability benefits were granted effective September 1, 2012, with anxiety disorder identified as the primary diagnosis and osteoarthritis and allied disorders identified as secondary diagnoses.

Service connection has not been granted for a psychiatric disability but has been granted for osteoarthritis of the back and right shoulder. SSA findings are not binding or controlling on VA. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (finding that while SSA’s factual determinations are probative, their ultimate conclusions are neither binding nor controlling upon VA). While not binding, the Board finds the SSA determination highly probative in light that benefits were granted, in part, based on osteoarthritis.

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Based on the foregoing, the evidence reflects that the Veteran’s service-connected disabilities prevent him from securing and maintaining substantially gainful occupation, and TDIU is therefore warranted.

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board T. Matta, 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.