Citation Nr: 1301995 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 04-28 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU) prior to February 24, 2010. 2. Entitlement to a TDIU as of February 24, 2010. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from June 1966 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2009, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In December 2009 and in October 2011, the Board remanded this matter for additional development. The issue of entitlement to a TDIU for the period prior to February 24, 2010, is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. As of February 24, 2010, service connection was in effect for urinary incontinence, rated 60 percent; degenerative disc disease of the cervical spine, rated 10 percent; residuals of right elbow contusion, rated 10 percent; left leg radiculopathy, rated 10 percent; right leg radiculopathy, rated 10 percent; degenerative disc disease of the lumbar spine, rated 10 percent; right hip bursitis, rated 10 percent; and left hip and pelvis bursitis, rated 10 percent. The combined rating for compensation is 80 percent. 2. There is competent and persuasive evidence that indicates that as of February 24, 2010, the Veteran's service-connected disabilities preclude him from securing or following substantially gainful occupation. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met as of February 24, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate 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)(1), 4.16 (2012). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. Service connection is in effect for urinary incontinence, rated 60 percent; degenerative disc disease of the cervical spine, rated 10 percent; residuals of right elbow contusion, rated 10 percent; left leg radiculopathy, rated 10 percent; right leg radiculopathy, rated 10 percent; degenerative disc disease of the lumbar spine, rated 10 percent; right hip bursitis, rated 10 percent; and left hip and pelvis bursitis, rated 10 percent. In addition, the Veteran has been assigned a noncompensable rating for additional service-connected disabilities: right ear hearing loss, facial scars, left leg scar, left hip scar, dental trauma to teeth numbers 8 and 9, muscle tension headaches, and low back scar. The Veteran's combined rating for compensation is 80 percent, effective February 24, 2010. Thus, as of February 24, 2010, the Veteran's disabilities satisfy the criteria of 38 C.F.R. § 4.16(a) (2012). The remaining question is whether the Veteran's service-connected disabilities render him unemployable as of February 24, 2010. 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. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his August 2003 claim for benefits, the Veteran stated that due to his service-connected disabilities he was totally disabled and unable to work In a January 2011 letter, the Veteran's private physician stated that the Veteran's disabilities had affected his ability to secure permanent and gainful employment since 2002, with his most recent employment attempt ending in 2007. His medical conditions were permanently and totally disabling and would continue to prevent him from any possibility of future employment. The doctor further opined that it remained her opinion that the Veteran's combined service-connected disabilities had rendered him totally disabled and unemployable since August 2002. In the opinion, the physician accurately discussed the Veteran's service-connected disabilities and pertinent medical evidence of record in support of the opinion. In a February 2011 VA examination report, a VA examiner opined that the Veteran's tension headaches hindered him from working and his urinary incontinency hindered him from doing a lot of manual work, but not sedentary work. A September 2012 VA examination report shows that the claims file was reviewed. The examiner identified the Veteran's service-connected disabilities. The examiner opined that the Veteran was currently capable of sedentary work. The examiner noted that while the Veteran's urinary incontinence was inconvenient, it was not totally disabling, and only necessitated that he be near a bathroom at work. His bilateral hip bursitis was mild and only limited his ability to perform heavy physical work and repetitive climbing and bending. His cervical and lumbar spine DDD/DJD was also quite minimal, and also limited his ability to perform heavy lifting, pushing, and pulling. He could not find any clinical evidence of cervical or lumbar radiculopathy on examination. His right elbow was relatively normal and had no impact on work. All of the other service-connected disabilities had no impact on work at all. The VA found that he Veteran was capable of sedentary work, and if properly conditioned by a physical therapist, could also perform light physical duties, as defined by the Department of Labor. In a September 2012 VA headaches examination report, the VA examiner opined that the Veteran's service-connected headaches disability would impact his ability to work. The examiner found that the Veteran's chronic headaches would limit his ability to concentrate on job tasks that required extreme mental alertness. In an October 2012 letter, the Veteran's private physician stated that she examined the Veteran's service-connected issues and found no improvement in his capabilities that would cause her to revise her previously submitted statements concerning his unemployability. The doctor further noted that the Veteran's physical and mental capabilities were profoundly affected and restricted by medications he was prescribed by her and the VA Medical Center and would impact his ability to perform at any job, even at the sedentary level. She concluded that her opinions are reaffirmed and were given with reasonable medical certainty and probability and so balanced by competent and credible medical evidence and without speculation that the Veteran's service-connected disabilities had rendered him totally unemployable. The doctor provided a comprehensive physical examination report and her findings. In this case, applying the doctrine of reasonable doubt, the Board finds that the evidence of record is at least in equipoise regarding whether the Veteran is able to obtain and maintain substantially gainful employment as of February 24, 2010. The Board finds probative that two different VA examiners have found that the Veteran's service-connected headache disability would impact and hinder his ability to work. Further, his private physician, has not only found that the Veteran's service-connected disabilities rendered him totally disabled and unemployable, but that medications that he takes for treatment of his service-connected disabilities would impact his ability to perform at any job, even at the sedentary level. Thus, despite the unfavorable conclusions of the September 2012 VA examiner, the Board finds the overall evidence as to employability is at least in equipoise for the period beginning on February 24, 2010. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful occupation as of February 24, 2010, and a TDIU is granted as of February 24, 2010. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A TDIU is granted as of February 24, 2010. REMAND For the period prior to February 24, 2010, the Veteran was service-connected for urinary incontinence, rated 20 percent; degenerative disc disease of the cervical spine, rated 10 percent; residuals of right elbow contusion, rated 10 percent; left leg radiculopathy, rated 10 percent; right leg radiculopathy, rated 10 percent; degenerative disc disease of the lumbar spine, rated 10 percent; and right hip bursitis, rated 10 percent. In addition, the Veteran had been assigned a 0 percent rating for additional service-connected disabilities of left hip and pelvis bursitis, right ear hearing loss, facial scars, left leg scar, left hip scar, dental trauma to teeth numbers 8 and 9, and muscle tension headaches. The combined rating was 60 percent. Thus, prior to February 24, 2010, the Veteran did not meet the schedular criteria for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(a). The issue, then, is whether the Veteran's service-connected disabilities nevertheless prohibited him from sustaining gainful employment, such that a TDIU rating may be assigned pursuant to 38 C.F.R. § 4.16(b). In a May 2005 VA examination report, a VA examiner opined that the Veteran was permanently disabled due to chronic pain symptoms. Specifically, the examiner opined that the Veteran was completely disabled and that he was permanently disabled due to neck, thoracic spine, and lumbar spine problems. A July 2007 private medical record shows the doctor's conclusion that it was apparent that the Veteran could not work in any capacity due to severe pains which caused paralytic episodes in both lower extremities which put him at risk for any type of work and in a nonfunctional state. The Board notes that the Veteran is service-connected for bilateral lower extremity radiculopathy associated with service-connected lumbar spine. The Board finds that further development is needed prior to final adjudication of the Veteran's claim for TDIU for the period prior to February 24, 2010. The Board finds that the Veteran is entitled to consideration for a TDIU rating pursuant to 38 C.F.R. § 4.16(b) prior to February 24, 2010, because there is evidence of record that suggests that the Veteran was unemployable due to service-connected disability. Therefore, the Board has no discretion and must request referral of the case to the Under Secretary for Benefits or to the Director of Compensation and Pension Service. Bowling v. Principi, 15 Vet. App. 1 (2001); Floyd v. Brown, 9 Vet. App. 88 (1996). The authority to assign extraschedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service, and not the Board. Where the Board finds entitlement to consideration of assignment of a TDIU is warranted, but the percentage requirements of 38 C.F.R. § 4.16(a) are not met, the proper course of action is to remand the claim for referral. 38 C.F.R. § 4.16(b) (2012); Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the pending claim for service connection for right arm carpal tunnel syndrome (referred to the AOJ by the prior two Board remands), which is an inextricably intertwined claim, prior to adjudicating the TDIU claim remaining on appeal. 2. Thereafter, refer the claim for TDIU prior to February 24, 2010, to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration pursuant to 38 C.F.R. § 4.16(b). Referral is mandatory, although the decision of whether to award a TDIU rating remains to be decided by the Director of Compensation and Pension Service or designate. Additional development of the claim may be undertaken if deemed necessary. 3. Then, readjudicate the claim. If, the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs