Citation Nr: 1237689 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 06-17 620A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jessica L. Cleary, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A December 2008 Board decision denied entitlement to a TDIU. The Veteran thereafter appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in August 2009, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and to remand the case for readjudication in accordance with the JMR. Pursuant to the August 2009 JMR, this case was remanded in November 2009 and October 2010 for further evidentiary development consisting of obtaining a VA examination with a medical opinion. Review of the record indicates compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2012, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is service-connected for residuals of a back injury of the lower spine (40%); degenerative joint disease of the cervical spine (40%); degenerative joint disease of the right hip (10%); and laceration scar of the neck (0%), for a combined service-connected rating of 70%. 2. The Veteran completed school through college with a postgraduate degree and has no special training. He last worked substantially gainful full-time employment in 1993. 3. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issue of entitlement to a TDIU, no further discussion of these VCAA requirements is required with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Analysis The Veteran contends that he is unemployable due to his service-connected joint disabilities. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). 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). See also 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service-connected disability or unemployability) & Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted for residuals of a back injury of the lower spine, evaluated as 40 percent disabling; degenerative joint disease of the cervical spine, evaluated as 40 percent disabling; degenerative joint disease of the right hip, evaluated as 10 percent disabling; and laceration scar of the neck, evaluated as zero percent or noncompensably disabling. The Veteran's combined service-connected disability rating is 70 percent. As such, the Veteran does meet the criteria for consideration for entitlement to TDIU on a schedular basis because the rating satisfies the percentage requirements of 38 C.F.R. § 4.16a. Consequently, the Board must now determine whether these service-connected disabilities preclude the Veteran from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of a service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to nonservice-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The record before the Board reflects that the Veteran has an education that includes completing college and a postgraduate degree. He has no additional training. His work history shows that he was last employed seasonally as a parking lot attendant from 2003 to 2005. Information from his last employer confirms that such position was seasonal. Prior to his seasonal part-time employment as a parking lot attendant, the Veteran worked as a school principal in 1993. See March 2006 VA Form 21-8940. VA examinations in May 2004 and December 2004 confirm his complaints of joint pain, in addition to limited motion. The May 2004 examination indicates that the Veteran's pain would last for hours with continued upright activities. They also show that the Veteran was limited his ability to walk distances longer than 100 yards. However, these examinations do not contain opinions regarding the effect of the Veteran's service-connected disabilities on his employability. The Veteran submitted a private vocational consultation dated in October 2009. The Veteran reported that he retired as a school principal in 1993 because he did not feel able to sustain full-time competitive employment due to a number of reasons, including his ongoing and gradually worsening arthritis pain and stiffness. The Veteran attempted to return to work in 2003 at the age of 70 because he missed working. Since his service-connected disabilities had worsened considerably by 2003, he had to settle for seasonal part-time employment as a parking lot attendant. His employer made generous accommodations for the Veteran's disabilities. Due to the continual worsening of his service-connected spine and right hip disabilities, he was forced to quit his part-time employment. The vocational specialist opined that the Veteran's part-time employment was not substantially gainful as his annual earnings never exceeded more than one half of the poverty level. The vocational specialist provided a review of the Veteran's pertinent treatment records. The Veteran reported that he could stand for about half an hour before he had to sit down to rest and change his position due to back, neck and right hip pain and stiffness. He could sit for up to 40 minutes at a time before he had to change his position. A few times per week, he could walk slowly for up to one mile, which took him about 45 minutes with at least three stops to rest. He could drive locally for about 15 minutes at a time due to pain in addition to limited motion of the neck. The Veteran required random, daytime naps at least four times per week due to tiredness brought on by his constant pain; such naps typically lasted for up to one hour. His pain levels were severe, reported as being a six on a scale of one to ten (6/10), with neck pain being even 7/10-8/10. He reported that maintaining his part-time summer job was very difficult in terms of coping with pain and stiffness. His job offered a number of accommodations, which included no lifting or prolong walking or standing. In addition, the employer permitted the Veteran to decline a full-time work schedule and allowed him to work 20 hours or less per week. Also, the employer allowed him to walk about as well as to change position and sit down as necessary in order to rest and relieve pain and discomfort. It was the vocational specialist's opinion that the Veteran had been unable to secure or follow any substantial occupation since 2003 due solely to his service-connected pain and orthopedic limitations. The specialist indicated that the Veteran's inability to work for more than three months per year and for more than 20 hours per week was indicative of how very incapacitated his service-connected disabilities caused him to be after 2003. The specialist noted that the Veteran's chronic neck pain and limited cervical range of motion without consideration of the additional back and right hip issues caused him to be unable to perform any substantial or competitive work activity. It was their opinion that the Veteran's 70 percent combined disability rating lent credibility to their opinion that the Veteran was for all practical, occupational and economic purposes vocationally unproductive. The specialist based their opinion on a review of the Veteran's claims file, in addition to a direct vocational interview with the Veteran. VA examinations were obtained in April 2010. The joint examiner opined that the Veteran's cervical spine, lumbar spine, and right hip disorders had significant effects on his usual occupation due to decreased mobility and pain. However, the examiner opined that the Veteran's service-connected disabilities less likely as not rendered him unable to obtain or retain substantially gainful employment. No rationale was provided. The Veteran reported to the scar examiner that he retired in 1993 due to physical problems. He reported suffering from neck pain and range of motion limitation in addition to back pain. He could not stand for long periods of time, so he was forced to retire. The scar examiner opined that the Veteran's disabilities resulted in decreased concentration; decreased mobility; decreased manual dexterity; problems with lifting and carrying; difficulty reaching; lack of stamina; weakness or fatigue; decreased strength of the upper extremities and lower extremities; pain; and disfigurement. The examiner noted that the Veteran had to work as a principal in spite of his pain. The October 2009 vocational specialist provided an additional opinion in May 2010. Such opinion indicates that the physical findings of the Veteran's disabilities shown at the April 2010 VA examination significantly bolstered and supported their vocational conclusion in the initial TDIU assessment. They indicated that the limitation of motion shown in May 2010 unequivocally pointed out just how functionally limited the Veteran was. An addendum opinion with a rationale from the April 2010 joints examiner was obtained in April 2011. The examiner continued to provide a negative opinion. The examiner's rationale was that as the Veteran was a teacher, such job could be performed by talking or using other means of communication and/or using adaptive equipment. However, the examiner did not address what effect the Veteran's pain had on his employability, particularly his need to take frequent naps to ease his pain. Subsequently, an additional opinion from the vocational specialist was obtained in May 2011. The specialist noted the U.S. Department of Labor's Dictionary of Occupational Titles definition of a teacher. They noted that there was nothing in that definition that allowed or enabled a teacher who experienced pain, stiffness and very limited range of cervical and lumbar motion to take random one hour naps totaling four per week and still retain his/her job as a teacher. The specialist opined that such a job accommodation would be disruptive to students and the classroom learning process and would not be tolerated. The specialist continued to opine that the Veteran's disabilities precluded his employment. At his September 2010 hearing, the Veteran testified that he retired as a school principal at the age of 69 in 1993. September 2012 Hearing Transcript (T.) at 4. He retired early because he was unable to perform his job the way he wanted due to his service-connected disabilities. Id. at 5-6. The Veteran felt that he was unable to secure substantially gainful employment due to constant pain from his service-connected disabilities. Id. at 8-9. The Veteran also testified regarding limitations in driving in that he could only handle driving for up to an hour due to neck pain. Id. at 10. He took naps almost every day due to pain and medication. Id. He gave up his seasonal part-time employment in 2003 due to neck, back and hip pain. Id. at 11. He could only walk for ten to 15 minutes and stand and sit for five or ten minutes. Id. at 11-12. His wife testified that she believed that his disabilities rendered him unable to work in a substantially gainful job. Id. at 15. Based on a review of the evidence, the Board concludes that an award of TDIU is warranted. As was discussed in the law and regulations section above, the appropriate TDIU standard is not whether a veteran is able to obtain any employment, or to maintain marginal employment. See Moore, 1 Vet. App. at 358. Rather, the standard is a subjective one and is whether a veteran can obtain and maintain substantially gainful employment. In affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of TDIU. In this case, the severity of the Veteran's service-connected joint disabilities is reflected in the 40 percent ratings for his lumbar spine and cervical spine disabilities each, in addition to the 10 percent rating for his right hip disability. Additionally, the Veteran has reported having severe, chronic pain, and that as a result of such pain in addition to medications taken to ease his pain, he has to nap almost every single day. The Veteran is competent to report about his symptomatology and the steps taken to ease his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, there is nothing in the record to suggest that the Veteran is not credible. When taking into account the Veteran's employment and educational background, in addition to the severity of his service-connected disabilities, the Board finds that the evidence supports the conclusion that the Veteran is incapable of performing the physical and mental acts required by employment. The Board's opinion is supported by the numerous opinions from the vocational specialist indicating that the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The vocational specialist based their conclusions on a review of the Veteran's claims file, in addition to interviewing the Veteran, as well as their expertise as a vocational specialist. Thus, based on the vocational specialist's opinion, the Board concludes that an award of a TDIU is warranted. In reaching this conclusion, the Board acknowledges the negative nexus opinion from the April 2010 examiner with the April 2011 rationale. However, this examiner did not address the Veteran's reports of having to nap frequently as a result of his severe and constant pain. Furthermore, both the opinion of the vocational specialist and the VA examiner were premised upon a review of the Veteran's claims file, in addition to an interview with the Veteran. Thus, the competent evidence regarding whether the Veteran's service-connected disabilities render him unemployable is in relative equipoise. In cases where the evidence is in relative equipoise, as here, the veteran prevails. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. (1990). Therefore, notwithstanding the negative opinion from the VA examiner, the evidence does support a finding that the Veteran's service-connected disabilities alone preclude him from obtaining and maintaining substantially gainful employment. The Board acknowledges that the Veteran has other nonservice-connected disabilities as evidenced by a denial of service connection for a heart attack. However, the Board is persuaded by the private vocational specialist's opinion that the Veteran is unable to work due to his service-connected disabilities. Without taking into account the Veteran's nonservice-connected disabilities, as the Veteran has no special training; as his joint disabilities cause constant pain and limitations in standing, walking, lifting, sitting, and driving, the Board finds that he is precluded from engaging in substantially gainful employment. Accordingly, the Board finds that the evidence of record is sufficient to show that the Veteran's service-connected disabilities of residuals of a back injury of the lower spine; degenerative joint disease of the cervical spine; degenerative joint disease of the right hip; and laceration scar of the neck, when taking into account his employment and educational history, preclude him from securing or following a substantially gainful occupation. As discussed above, the Veteran's previous substantially gainful occupation consisted of being a principal. Although the Veteran has worked seasonal employment since he retired from being a principal due to his service-connected disabilities, the evidence suggests that such employment is not substantially gainful. Rather, the opinion from the vocational specialist indicates that the Veteran's seasonal work as a parking lot attendant was marginal. In this case, there is nothing in the record to indicate that the Veteran's former substantially gainful employment as a school principal would allow him to work with accommodations needed for his service-connected disabilities. Accordingly, in considering the severity of the Veteran's service-connected disabilities, his competent and credible lay statements, the opinions from the private vocational specialist, as well as his employment and education history, and in affording him the benefit-of-the-doubt, the Board finds that he is unemployable due to his service-connected disabilities. The evidence is in favor of the grant of a TDIU. Entitlement to a TDIU is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs