Citation Nr: 1031276 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-23 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased rating for service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 currently evaluated as 60 percent disabling, to include a separate rating or ratings for right upper extremity disability claimed as arm and hand disability, for accrued benefits purposes 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for accrued benefit purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had 20 years active duty service ending with his retirement in April 1986. He died in July 2000. The appellant is advancing her appeal as the Veteran's widow. The issues on appeal were before the Board in April 2007. The appellant appealed the Board's April 2007 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated May 21, 2008, the Court remanded this matter to the Board for compliance with the instructions included in the May 2008 Joint Motion for Remand. The Board remanded the claim in November 2009 for additional development. A review of the record shows that the RO has complied with all remand instructions by obtaining a VA medical opinion in January 2010, determining whether separate ratings were warranted, and determining whether a claim of TDIU was warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The appellant testified at a hearing before the Board at the RO in April 2005. A transcript is of record. In a letter written in June 2008, the appellant was informed that the Veterans Law Judge who conducted her April 2005 hearing had since resigned from the Board. She was informed that the Veterans Law Judge was unable to participate in deciding her appeal and that her case would be reassigned to another Veterans Law Judge for decision. In response, the appellant marked the appropriate line to indicate that she did not want an additional hearing before another Veterans Law Judge. FINDINGS OF FACT 1. Evidence of record at the time of the Veteran's death showed that the Veteran's service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 was pronounced with persistent symptoms compatible with neuropathy and other neurological findings related to the right upper extremity. 2. The 60 percent rating in effect for the Veteran's service- connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 contemplated the associated right upper extremity neuropathy and neurological symptoms, and separate ratings for the associated neuropathy and neurological symptoms were not warranted. 3. At the time of the Veteran's death, service connection was in effect for herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7; chronic open angle glaucoma with early cataracts; residuals, right knee injury with torn medial meniscus and osteoarthritis; bilateral sensorinueral hearing loss; recurrent sliding hiatal hernia; left foot lateral border fifth toe callus formation; and left shoulder chronic bursitis precluded substantially gainful employment; the Veteran's combined service-connected disability rating was 80 percent. . 4. The Veteran's service-connected disabilities rendered him unable to engage in substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 60 percent for the Veteran's service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7, to include a separate rating or ratings for right upper extremity disability claimed as arm and hand disability were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a and Code 5293 (1999). 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the appellant's increased rating claim for accrued benefits purposes, the RO provided the appellant with notice regarding accrued benefits claims in November 2004, subsequent to the initial adjudication. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the notification did not advise the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claim for an increased rating is denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in March 2005 and June 2008 supplemental statements of the case, following the provision of notice. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Regarding the appellant's TDIU claim for accrued benefits purposes, there is no need to undertake any review of compliance with the VCAA and implementing regulations in this case since there is no detriment to the appellant as a result of any VCAA deficiency in view of the fact that the full benefit sought by the appellant is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Assist VA has obtained VA and private treatment records, assisted the appellant in obtaining evidence, obtained a VA medical opinion in January 2010, and afforded the appellant the opportunity to give testimony at a hearing before the Board at the RO in April 2005. The Board acknowledges that on one page of the January 2010 VA examination report, the VA examiner indicated that both claims file and medical records were reviewed. However, in a subsequent page, the VA examiner reported not reviewing private and VA treatment records and only reviewing service treatment records. Nevertheless, additional development is not warranted since the VA examiner provided a favorable medical opinion linking the Veteran's right upper extremity disabilities to the Veteran's service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the appellant and her representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Analysis Upon the death of a veteran, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his death ("accrued benefits") and due and unpaid for the period not to exceed two years, shall, upon the death of such individual be paid to the living person first listed as follows: (1) his spouse, (2) his children (in equal shares), (3) his dependent parents (in equal shares). 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). In order for a claimant to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating decision." Jones v. West, 136 F.3d 1296, 1299 (Fed.Cir. 1998)). The Board emphasizes that by statute, entitlement to accrued benefits must be based on evidence in the file at the time of death, or evidence, such as VA records, deemed to be of record at that time. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 6 Vet. App. 483 (1994). The Veteran filed a claim for entitlement to increased ratings for service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7, right knee injury with torn medical meniscus and osteoarthritis, and bilateral sensorineural hearing loss, that was received in May 2000. At the time of the Veteran's death in July 2000, a rating decision was not issued; therefore, the Veteran had pending claims for entitlement increased ratings for service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7; right knee injury with torn medial meniscus and osteoarthritis, and bilateral sensorineural hearing loss. Within one year of the Veteran's death, the appellant timely filed a notice of disagreement that was received in August 2001, which limited her appeal to the issues of entitlement to an increased rating for service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 currently evaluated as 60 percent disabling, for accrued benefits purposes; and entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for accrued benefit purposes. I. Increased Ratings The present appeal involves the appellant's accrued benefits claim that the severity of the Veteran's service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 warranted a higher disability rating. In a letter received in April 2004 and at the April 2005 hearing before the Board at the RO, the appellant explained why she believed that her husband should have been rated at 100 percent. In the letter, she noted that her husband had complained that his disability deteriorated to the point that he could not do a thing, and that he reported constant pain and extremely limited motion. At the aforementioned hearing, she testified that the Veteran was not able to function due to the numbness and tremor in his hands, and that he had lack of mobility and pain in his neck. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may have been warranted for different time periods. At the time of his death, the Veteran's service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 was rated by the RO under the provisions of Diagnostic Code 5293 for intervertebral disc syndrome. Under this regulatory provision, a maximum rating of 60 percent is warranted where the disability is pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). Under alternate Diagnostic Codes, a maximum rating of 100 percent is warranted for residuals of fracture of vertebra with cord involvement, bedridden, or requiring long leg braces. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (1999). Under Diagnostic Code 5286, a maximum rating of 100 percent is warranted for ankylosis of the spine with unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a, Diagnostic Code 5286 (1999). A July 1999 VA treatment record shows status post discectomy/fusion C6-7. An April 2000 computed tomography (CT) scans from Robert A. Friedman, M.D. of Radiology Associates of Nevada showed borderline spinal flattening at C6-7. An April 2000 private treatment record from G. Petroff, M.D. reveals cervical stenosis. A May 2000 VA treatment record shows that the Veteran complained of constant pain in the neck for years that was getting worse for the last 4 to 5 years. Various July 2000 private treatment records from Sansum-Santa Barbara Medical Foundation Clinic show that the Veteran was treated for neck pain. A magnetic resonance imaging (MRI) showed status post interbody fusion, normal alignment, no significant central spinal stenosis and no significant encroachment upon the exiting C7 nerve roots. Another July 2000 treatment record from Sansum-Santa Barbara Medical Foundation Clinic shows cervical spondylosis and severe central stenosis. Overall, the evidence does not show that the Veteran had either residuals of fracture of vertebra with cord involvement, bedridden, or requiring long leg braces; or had ankylosis of the spine. Accordingly, Diagnostic Codes 5285 and 5286 are not for application. By regulatory amendment effective September 26, 2003, substantive changes were made to the schedular criteria for evaluation of diseases and injuries of the spine. As there is no indication that the revised criteria are intended to have retroactive effect, the Board has the duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new rating criteria, and to consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). The retroactive reach of the revised regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. However, the revised regulations are not for application here since they were effective after the date of the Veteran's death. As a general matter, in evaluating musculoskeletal disabilities, the VA must determine whether the joint in question exhibits weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. However, where a musculoskeletal disability is currently evaluated at the highest schedular evaluation available, a DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Thus, since the Veteran has been granted the maximum rating possible under Diagnostic Code 5293, the analysis required by DeLuca, would not result in a higher schedular rating. The Board acknowledges the appellant's letters received in April 2004 and December 2004 in which she asserted that a private physician told Veteran that he would be paraplegic if he did not get his neck treated. The Board notes that what a physician said and a layman's account of what he purportedly said is too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Furthermore, in one of the letters received in December 2004, that she had copies of all of his records from Santa Barbara, and admitted that there is no mention of his opinion that he would be paraplegic if his neck were left untreated. Separate Ratings The Court remanded this matter to the Board for compliance with the instructions of a May 2008 Joint Motion for Remand. As discussed in the May 2008 Joint Motion for Remand, when the Board had found that the appellant had been assigned the maximum schedular rating available for cervical spine disability, the Board failed to consider whether the appellant was potentially entitled to separate ratings for cervical spine disability, and for disability of the arms and hands, particularly on the right side. The Joint Remand provided that in July 1999, the Veteran had complaints of right arm pain and tremors and that he was diagnosed with radiculopathy in the right upper extremity, status post discectomy. A March 2000 consultation report from a private physician (G. Petroff, M.D.) indicated that the Veteran had a tremor with using his right arm and his hand at times. The physician further noted that the Veteran's reflexes were decreased in the right compared to the left arm. It was additionally noted that the Veteran complained of weakness and numbness of the right upper extremity in May 2000. The Joint Remand directed the Board to determine whether and to what extent the Veteran's right arm pathology is related to his service- connected cervical spine disability; and if some or all right arm pathology is related to the service-connected cervical spine disability, it should be determined if separate ratings are in order under limitation of motion codes and neurological diagnostic codes. If it is determined that separate ratings are possible, then it should be determined whether it is more beneficial to the appellant to rate the disabilities separately. The Board notes that since the Court issued its Order in May 2008, the appellant submitted additional evidence that includes copies of the Veteran's May 1977 and July 1977 service treatment records that altogether show pain in the medial parascapular region and weakness in the right upper extremity. The appellant also submitted copies of pages from The Merck Manual (17th ed.) addressing radiculopathies. The Board additionally notes that an August 1998 VA treatment record shows that the Veteran complained of loss of control of the right arm from his neck downward while maintaining strength. Further, an April 2000 CT scan of the cervical spine from Radiology Associates of Nevada shows a history of shaky right upper extremity. Per the Board's November 2009 remand instructions, a VA examiner in January 2010 reviewed the Veteran's claims file and opined that it is at least as likely as not that the Veteran's right upper extremity disability was related to his service-connected spine disability. Based on the VA examiner's personal experience and the medical evidence of record, the VA examiner noted that the Veteran engaging in mechanical work, heavy lifting, work on automobiles, or maintenance would trigger a flare in the Veteran that would last a few weeks, which resulted in decreased range of motion of the right upper extremity, especially to overhead movements within an extreme weakness. The VA examiner stated that the Veteran would have definitely had parasthesia dysthesisia mostly involving the right hand. He added that the Veteran would have burning, shooting pain down the lateral/medial (radial/ulnar dermatome-C5-6; C6-7) and into the whole hand. The VA examiner noted that in 2000, Dr. Petroff recommended that the Veteran have urgent surgery for cervical spinal stenosis levels C3-4;C4-5. Of significance, he said, was that the Veteran had loss of the triceps and biceps reflex, which would mean he could lose the use of the whole right upper extremity. It was the VA examiner's belief that if the Veteran underwent the proposed surgery, he would still have radicular complaints of right upper extremity, but more severe. With a medical opinion reflected that the Veteran's right upper extremity is related to the Veteran's cervical spine disability, the Board has considered separate ratings. However, it appears to the Board that it is not beneficial to the appellate to rate the disabilities separately. The Board acknowledges that the Veteran had reported pain, weakness, numbness and tremors of the right upper extremity. However, the Board views the existing 60 percent rating under Diagnostic Code 5293 as contemplating such symptomatology. That Code expressly includes consideration of neuropathy and other neurological findings. Separating the disabilities and applying ratings under separate diagnostic codes here would constitute pyramiding, which is impermissible. See 38 C.F.R. § 4.14. The Board acknowledges that current rating criteria for cervical spine disability does expressly contemplate the assignment of separate ratings for neurological manifestations. However, under the old criteria in effect at the time of the Veteran's death, it does not appear that separate ratings were contemplated. Even if separate ratings were determined to be permissible under the old criteria, an adjustment in the rating for the cervical spine disc disease would have to be made to avoid pyramiding. In other words, the rating under Code 5293 would have to be decreased if a separate rating or ratings were to be assigned for right upper extremity symptomatology. Such separate ratings would not be more beneficial to the appellant as it appears to the Board that the combined rating for the cervical spine disability together with associated upper right extremity symptoms would be less than 60 percent. See 38 C.F.R. § 4.25 (1999). In sum, the Board finds that a rating in excess of 60 percent, to include a separate rating or ratings for right upper extremity symptomatology, is not warranted. Extraschedular Rating In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. II. TDIU At the April 2005 hearing before the Board at the RO, the appellant testified that her husband did not work because he was in too much pain. Total disability will be considered to exist 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). Provided that if there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the applicable percentage standards provided in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total disability rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. At the time of the Veteran's death, service connection was in effect for herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 (10 percent from May 1, 1986; and 60 percent from July 20, 1998); chronic open angle glaucoma with early cataracts (30 percent from May 1, 1986); residuals, right knee injury with torn medial meniscus and osteoarthritis (10 percent from May 1, 1986); bilateral sensorinueral hearing loss (0 percent from May 1, 1986); recurrent sliding hiatal hernia (0 percent from May 1, 1986); left foot lateral border fifth toe callus formation (0 percent from May 1, 1986); and left shoulder chronic bursitis (0 percent from May 1, 1986). Overall, the veteran has a combined service-connected disability rating of 80 percent with one disability rated at more than 40 percent. See 38 C.F.R. § 4.25. Although the percentage criteria listed under 38 C.F.R. § 4.16(a) has been met, the Board must still consider whether the Veteran was unemployable by reason of his service- connected disabilities. As was noted in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993): The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a). In a June 1990 letter to his Senator regarding educational benefits, the Veteran reported that he retired from the military after 20 years. He was classified as being 40 percent disabled. After service, he held a job for a year, but quit due to long travel time and daily airplane rides, where he had to sit for long periods of time. The next year, he underwent back surgery for his lower back and afterwards received a job with the Post Office. Due to surgery for appendicitis, he had to decline the job offer, but was eventually hired as a postal carrier in March 1989. He held that job until January 1990 due to the long hours on his feet and the stress on his back. He expressed in his letter that he would like to attend school to learn refrigeration and air conditioning. A March 2000 treatment record from Dr. Petroff shows that the Veteran retired as an electronics expert. At the April 2005 hearing before the Board at the RO, the appellant testified that the Veteran was trained in the military as a mechanic and then in electronics. She testified that he worked on Airborne Warning and Control System. She further testified he had not worked the last year of his life from 1990 onward since he was not really able to hold any employment for any length of time because of his neck and loss of feeling in his hand. When providing the Veteran's work history, she reported that the Veteran worked in a convalescent home as the maintenance person, but that lasted a couple of months. He later worked for the state as maintenance-custodian-type employee for four months and later moved to Las Vegas. She reported that he had no employment except that of a census taker. He later quit his job due when he found out that he had an aneurysm. The appellant asserted that he was unemployable primarily due to his neck prior to March/April 2000 when the aneurysm was discovered. The January 2010 VA examination report shows that the Veteran's neck disability and radiculopathy had significant effects on the Veteran's occupational activities. The VA examiner listed the following: decreased concentration, inappropriate behavior, poor social interaction, difficulty following instructions, decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength of the upper extremity, and pain. As a result, the Veteran was assigned different duties, had increased tardiness and absenteeism. In a July 2010 statement, the Veteran's representative asserted that based upon the above symptoms, it would seem difficult to imagine one being able to gain and sustain employment while dealing with the pain and difficulties during the course of the work day. He asserted that it seemed to him that these conditions would prevent the Veteran from working. With the competent evidence suggesting that the Veteran's service-connected cervical spine disability and right upper extremity disability had reached the point of having significant effects on the Veteran's occupational activities, both mentally and physically, it is doubtful whether the Veteran could have kept and maintain substantially gainful employment. The Veteran had experience as a postal carrier and was trained as a mechanic and in electronics, and it does not appear to the Board that the Veteran was capable of performing the physical and mental acts required by such employment. Thus, the Board concludes that the Veteran was unemployable due to his service-connected disabilities and that entitlement to TDIU is warranted. 38 U.S.C.A. § 5107(b). The criteria for a total rating based on individual unemployability due to service connected disability for accrued purposes have been met. ORDER Entitlement to an increased rating for service-connected herniated nucleus pulposus of the cervical spine, status post laminectomy C6-C7 currently evaluated as 60 percent disabling, to include separate ratings for right upper extremity symptomatology, for accrued benefits purposes, is not warranted. To this extent, the appeal is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for accrued benefit purposes, is warranted. To this extent, the appeal is granted, subject to laws and regulations applicable to payment of VA monetary benefits. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs