Citation Nr: 1303175 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 04-05 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) as associated with claims on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied a rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine. In May 2012, the Board addressed several issues related to the Veteran's 2003 claim for an increased rating for his lumbar spine disability, and included a claim of TDIU based upon Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for an increased evaluation includes a claim for TDIU where the Veteran claims his service-connected disabilities prevent him from working). While the May 2012 inclusion of a claim for TDIU was based upon an appeal of an August 2003 rating decision addressing the Veteran's lumbar spine disability, the Board notes that in August 2007, the Veteran filed a formal claim of entitlement to TDIU. In a January 2008 rating decision, the RO denied his claim for TDIU, and the Veteran did not appeal this decision. Therefore, that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d) , 20.200, 20.201, 20.302, 20.1103 (2012). As such, any grant of TDIU must therefore begin no earlier than January 5, 2008. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are the following: degenerative disc disease of the lumbar spine (40 percent disabling effective August 17, 2007); bilateral lower extremity radiculopathy (each 10 percent from May 15, 2003, 20 percent from July 26, 2012); fractured left ankle (10 percent from April 15, 1975); tarsal tunnel syndrome (10 percent from February 4, 2002); right tibial tendonitis (10 percent from March 23, 2004); depression (10 percent from March 23, 2004); and fractured left great toe (noncompensable). He had a combined 70 percent rating beginning August 17, 2007, and 80 percent combined rating from July 26, 2012. 2. Resolving reasonable doubt in the Veteran's favor, the competent and probative evidence of record supports a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim for TDIU, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Laws and Regulations 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. See 38 C.F.R. § 4.16. 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." See 38 C.F.R. §§ 3.340(a)(1) , 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. 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 cause by non service-connected disabilities. See 38 C.F.R. §§ 3.341 , 4.16, 4.19. Factual Background and Analysis As was discussed in the law and regulations section above, TDIU may be awarded on a schedular or extraschedular basis. In this case only the schedular basis need be considered because, as noted in the introduction, the Veteran did not appeal a January 2008 denial of TDIU, and thus any grant of TDIU must be effective after that date. The Veteran's service-connected disabilities are the following: degenerative disc disease of the lumbar spine (40 percent disabling effective August 17, 2007); bilateral lower extremity radiculopathy (each 10 percent from May 15, 2003, 20 percent from July 26, 2012); fractured left ankle (10 percent from April 15, 1975); tarsal tunnel syndrome (10 percent from February 4, 2002); right tibial tendonitis (10 percent from March 23, 2004); depression (10 percent from March 23, 2004); and fractured left great toe (noncompensable). The Veteran had a combined 70 percent rating beginning August 17, 2007, and 80 percent combined rating from July 26, 2012. Therefore, the service-connected disabilities meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) from August 17, 2007. The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). Due primarily to his lumbar spine and lower extremity disabilities the Veteran has had difficulty maintaining employment for a number of years. The claims file contains statements from physicians' from 1992 and 1995 suggesting that the Veteran needed sedentary/non-manual labor employment. A May 2003 private treatment record indicated the Veteran injured his spine in work-related accidents in 1983 and 1992, requiring back surgeries. The private physician indicated instructed the Veteran to limit his lifting to less than 10 lbs. The physician also suggested limiting his work to just Tuesdays through Fridays, 9 1/2 hour days, without work on Saturday or any heavy lifting. While he was employed in May 2003, he indicated in July 2003 that he was unemployed. In January 2006, the Veteran indicated he could only work part-time as a result of his back and leg pain. A March 2007 VA treatment record noted that the Veteran could not bear weight on his left leg due to pain. In May 2007, he reported to VA care providers that he was working part-time as a cook. By August 2007, he was unemployed but reported that he was training to become a chef. He reported his low back disability inhibited any activity that required prolonged walking, prolonged standing or prolonged sitting. On his August 2007 formal TDIU claim, the Veteran reported he worked in sales at an auto parts store for less than a year from 2001 to 2002, and worked as a cook for nearly a year from 2006 to 2007. His claim did not include a listing of his employment from 2003, which was noted in treatment records. He indicated he worked full time at the auto parts store, but worked part-time as a cook. He stated he had to leave both jobs as a result of his low back disability. He reported a high school education, as well as two years of technical college learning gunsmithing. VA treatment records from 2004 indicate that the Veteran attempted to start a gunsmith business, where he hoped to work primarily on engraving, but that he was unable to procure money or loans to adequately start the business. In June 2012, the Veteran submitted an additional VA Form 21-8940. He indicated he worked as a part-time cook from 2006 to 2007 and from 2008 to 2009. He indicated he worked as a counselor at "Experience Works" from 2010 to the present, also part-time. And that he worked as a gunsmith, self-employed, for roughly 10 hours a week, from 2007 to 2009. He described his employment at "Experience Works" as administrative. He also noted he became too disabled to work on April 14, 2012. A VA 21-4192 from "Experience Works" noted that the Veteran began as an "employment counselor" in October 2009, and that he was still active. There was no indication made regarding pay. A July 2012 letter from the training coordinator from "Experience Works" noted the Veteran was a "participant assistant" in the Department of Labor's Senior Community Service Employment Program. The coordinator also noted the Veteran was offered a position as a cook, but that after he attempted to work the first day, he had to turn down the job due to back pain. In July 2012, the Veteran was afforded a VA TDIU examination. The examiner noted the Veteran was employed at "Experience Works (green thumb) training program" and had not lost time from work in the past 12 months. His prior work history included: meat cutter, roughneck at an oil field, safety supervisor at an oil field, building maintenance for the post-office, auto sales, gunsmith school, several cooking jobs, and "Experience Works." During a flare-up of back pain the Veteran stated he was unable to dress himself, bend over, cook, or take a shower. The examiner noted the Veteran's spine disability impacted his ability to work because he was unable to stand for more than 15 minutes, sit for more than 30 minutes, or drive for more than 60 minutes without a break. He also had difficulty reaching, twisting, and bending over. He was unable to lift more than 10 lbs. The examiner opined that his spine disability would limit the Veteran to "light sedentary employment that would allow him to reposition frequently." Regarding his left ankle disability, the examiner noted the Veteran could not have employment that would require walking, frequent standing, twisting or pivoting, but would not limit him regarding sedentary employment. In October 2012, the Veteran was provided a VA psychiatric examination in conjunction with the TDIU claim. The examiner found that the Veteran's depression was in remission. He reported struggling to maintain full-time employment, and had terminated two jobs due to physical disabilities (2007 and 2009). After a review of the claims file and interview with the Veteran, the examiner opined that his mental health was not a factor in his ability or inability to maintain employment. In December 2012, the Veteran's representative provided a detailed statement regarding the "Experience Works" program. Though referred to as employment by the Veteran and the July 2012 VA examiner, it is more of a training and practical experience program designed to help senior citizens obtain employment. One requirement of the program is unemployment. The representative also argued that the July 2012 VA TDIU examination was inadequate because the VA examiner did consider the Veteran's employment history and education. See Cathell v. Brown, 8 Vet. App. 539, 544 (1996); Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991). The evidence of record clearly shows that the Veteran cannot obtain and maintain employment which requires walking, lifting, bending, carrying, twisting, or prolonged sitting and standing. Additionally, the Veteran's work history has included all manual labor-type employment. His employment as a safety supervisor was on an oil field. While he has his high school diploma and two years of higher education towards gunsmithing, the evidence shows he was unable to pursue opening a business as a gunsmith. Treatment records from 2004 indicate that the physical restrictions placed on him by his physician were used to deny him a loan to open a gunsmith business. He additionally reported doing gunsmith work part time for a couple of years before his disabilities caused him to quit. The evidence shows that he does not have experience with sedentary employment, or an educational background which would easily be applied to sedentary employment. Additionally, his sedentary employment would have to allow for frequent changes in position as the VA TDIU examiner noted he could not sit for longer than 30 minutes. As such, the Board does not believe that the sedentary employment suggested by the TDIU examiner would be easily obtainable, nor would his continued attempts at part-time employment result in anything greater than marginal employment. As such, the Board finds that the Veteran is entitled to TDIU. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In conclusion, for the reasons and bases expressed above, the Board finds that the Veteran's claim of entitlement to TDIU is warranted on a schedular basis. T he benefit sought on appeal is accordingly granted. ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs