Citation Nr: 1304875 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 11-23 859A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to a disability rating in excess of 30 percent for depression. 3. Entitlement to a disability rating in excess of 20 percent for scoliosis. 4. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease, right shoulder. 5. Entitlement to a disability rating in excess of 10 percent for chronic pain syndrome of the right knee with advanced degenerative joint disease. 6. Entitlement to a disability rating in excess of 10 percent for pes planus with plantar fasciitis and arthritis. 7. Entitlement to a disability rating in excess of 10 percent for residuals of an injury to the thorcodorsal nerve. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1943 to March 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In January 2013, the Board received additional evidence from the Veteran. This evidence has not been reviewed by the agency of original jurisdiction. However, the Veteran included a written waiver of this procedural right with the evidence received. 38 C.F.R. §§ 19.37, 20.1304 (2012). Thus, the Board will consider the newly submitted evidence in the first instance. 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). The issues of whether a September 2008 rating decision which grouped the Veteran's service-connected bilateral pes planus, bilateral plantar fasciitis, and bilateral foot arthritis into a single rating under Diagnostic Code 5276 contains a clear and unmistakable error, and whether a September 2008 rating decision that did not provide a bilateral rating for the Veteran's service-connected bilateral foot disorder and right knee disorder contains a clear and unmistakable error have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to increased ratings for depression, scoliosis, degenerative joint disease of the right shoulder, chronic pain syndrome of the right knee, pes planus, and residuals of an injury to the thorcodorsal nerve are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are the following: depressive disorder associated with degenerative joint disease of the right shoulder (30 percent disabling effective July 31, 2001); degenerative joint disease, right shoulder (20 percent from July 31, 2001); scoliosis (20 percent disabling from June 10, 2004); pes planus with plantar fasciitis and arthritis (10 percent disabling from May 9, 1949); chronic pain syndrome of the right knee with advanced degenerative joint disease (10 percent disabling from July 31, 3001); and residuals of an injury to the thorcodorsal nerve (10 percent disabling from July 31, 2001). He had a combined 70 percent rating beginning June 10, 2004. 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. 2012); 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), 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 The Veteran's service-connected disabilities are the following: depressive disorder associated with degenerative joint disease of the right shoulder (30 percent disabling effective July 31, 2001); degenerative joint disease, right shoulder (20 percent from July 31, 2001); scoliosis (20 percent disabling from June 10, 2004); pes planus with plantar fasciitis and arthritis (10 percent disabling from May 9, 1949); chronic pain syndrome of the right knee with advanced degenerative joint disease (10 percent disabling from July 31, 3001); and residuals of an injury to the thorcodorsal nerve (10 percent disabling from July 31, 2001). The Veteran had a combined 70 percent rating beginning June 10, 2004. The Board specifically notes that the disabilities of depressive disorder associated with degenerative joint disease of the right shoulder (30 percent disabling effective July 31, 2001) and degenerative joint disease, right shoulder (20 percent from July 31, 2001) have a common etiology, and as such, are considered are considered as one disability for the purposes of establishing "at least one disability ratable at 40 percent or more." See 38 C.F.R. § 4.16(a). Therefore, the service-connected disabilities meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). 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). According to the VA form 21-8949 submitted by the Veteran, the Veteran last worked full time in 1988. He indicated that his education consisted of two years of training in business management. He had previously worked in the field of international commerce. He indicated that he could not work due to pain in his back, shoulder, and feet. In December 2004, a VA spine examiner noted that the Veteran's back pain and knee pain affected his walking. The Veteran could only walk one to two blocks without an assistive device. He had difficulty with sitting and standing for extended periods, lifting, objects, and work. The examiner opined that the Veteran's occupational functioning could be limited by his inability to walk, stand, or sit for extended periods. A second VA examiner opined in a December 2004 joints examination that the post office would not hire the Veteran due to his joint problems. The examiner concluded that the Veteran's knee degenerative joint disease and degenerative joint disease of the shoulder affected the Veteran's occupational functioning as he could only walk, sit, or stand for limited amounts of time. On VA spine examination in March 2007, the examiner remarked that the Veteran retired from his prior employment in 1988. The examiner noted that the Veteran had not been able to obtain employment after that due to his back, shoulder, and knee problems. The examiner indicated that the Veteran's back pain was less likely as not caused by or a result of his war-related injury. In March 2007, a VA psychiatric examiner opined that the Veteran's chronic depression and irritability were less likely as not an impediment to sedentary employment. A VA joints examiner remarked in March 2007 that the Veteran's pain in the right shoulder and knee was less likely as not caused by or a result of his war-related injury. However, the examiner also indicated that the Veteran's disability of the right shoulder and right knee had prevented the Veteran from getting employment since 1998. A VA podiatry examination report from March 2007 reflects that the Veteran had pain in the plantar aspect of his feet. Concerning employability, the examiner remarked that the Veteran may have difficulty due to foot status and his general age. He added that the Veteran could be employed as long as the duties did not include long periods of standing. In July 2008, the Veteran was given a VA examination specifically in connection with his claim for a TDIU. The examiner noted the Veteran's service-connected disabilities and remarked that the Veteran's main career was working in import and export shipping. The examiner observed that the Veteran walked with an ataxic gait which was very slow and calculated. The examiner conducted a thorough examination and gave the Veteran diagnoses of generalized degenerative joint disease of bilateral knees, hips, and feet; ankylosing spondylitic; hypothyroidism; major depressive disorder; and basal carcinoma of the scalp. The examiner opined that due to the Veteran's disorders, he was unable to seek employment at that time, and even if the Veteran found work, he wouldn't be able to be gainfully employed due to his limitations. In June 2009, the Veteran's attending VA doctor stated that the Veteran continued to suffer from depression, nightmares, difficulty dealing with people, and worsening back and knee pain with balance problems. The doctor opined that considering those factors, the Veteran was not employable. On VA psychiatric examination in May 2012, the examiner opined that it was less likely as not that emotional factors disrupted the Veteran's prior vocational participation. A VA podiatrist indicated that the Veteran's flatfoot condition did not impact his ability to work. A VA joint examiner wrote that the Veteran's back, knee, and shoulder separately did not impact his ability to work. In considering the evidence of record, the Board notes that a number of VA examiners have indicated that the Veteran's service connected disabilities did not impact his employability (see VA examination reports from March 2007, May 2012). Significantly, however, each of these examination reports only considered the Veteran's employability based on consideration of the Veteran's service-connected disabilities singly and not as a whole. As noted above, in July 2008, the Veteran was given a VA examination specifically for consideration of how his service connected disabilities as a whole impacted his employability. The July 2008 VA examiner opined that the Veteran would not be able to be gainfully employed due to his service-connected disabilities. The opinion of the July 2008 VA examiner was supported by the Veteran's attending VA physician, who opined in June 2009 that the Veteran was not employable due to specific symptoms that were related to his service-connected disabilities. As the July 2008 VA examiner and June 2009 VA doctor considered the Veteran's service-connected disabilities as a whole instead of singly, the Board finds that their opinions outweigh the opinions of the other VA examiners. The evidence of record clearly shows that the Veteran cannot obtain and maintain employment which requires frequent walking, lifting, bending, carrying, twisting, or prolonged sitting and standing. Additionally, sedentary employment would have to allow for frequent changes in position, and multiple VA examiners noted he could not sit or stand for extended periods. As such, the Board does not believe that sedentary employment 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. The 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. REMAND In a June 2012 rating decision, the Veteran was denied increased ratings for his service connected depressive disorder, scoliosis, degenerative joint disease of the right shoulder, chronic pain syndrome of the right knee with advanced degenerative joint disease, pes planus with plantar fasciitis and arthritis, and residuals of injury to the thorcodorsal nerve. In September 2012, the Veteran disagreed with the June 2012 RO decision. As the Veteran has not been provided a statement of the case in response to the June 2012 notice of disagreement, a remand is required for the issuance of a statement of the case on these issues. See Manlicon v. West, 12 Vet. App. 238 (1999). (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should issue a statement of the case to the appellant and his representative on the issues of increased ratings for his service connected depressive disorder, scoliosis, degenerative joint disease of the right shoulder, chronic pain syndrome of the right knee with advanced degenerative joint disease, pes planus with plantar fasciitis and arthritis, and residuals of injury to the thorcodorsal nerve. He should also be informed of the requirements to perfect an appeal with respect to these issues. 2. If the Veteran perfects an appeal with respect to any of these matters, the RO or the AMC should ensure that any indicated development is completed before the case is returned 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs