Citation Nr: 1306366 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-37 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from October 2001 to July 2006. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from February and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The November 2007 decision, in pertinent part, denied the Veteran's claim for a TDIU. In a June 2010 decision, the Board denied the Veteran's claims for service connection for bilateral radiculopathy of the lower extremities and an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine prior to March 19, 2008. At that time, the Board remanded his claim for a TDIU to the Appeals Management Center in Washington, D.C., for issuance of a statement of the case that was provided to him in August 2010. In September 2010, he perfected an appeal as to that matter. FINDINGS OF FACT 1. Service connection is currently in effect for degenerative disc disease of the lumbar spine, evaluated as 20 percent disabling prior to March 19, 2008, and as 40 percent disabling thereafter; chronic obstructive pulmonary disease (COPD) with asthmatic bronchitis, evaluated as 30 percent disabling; a pain disorder, evaluated as 30 percent disabling; gastroesophageal reflux disease (GERD) with Crohn's disease, evaluated as 10 percent disabling; and allergic rhinitis, assigned a noncompensable rating. The Veteran's combined disability evaluation is 70 percent. 2. Resolving all doubt in the Veteran's favor, the evidence of record reflects that he is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for assignment of a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.3.340, 4.3, 4.7, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that the Veteran is entitled to assignment of a TDIU; i.e., the benefit sought on appeal is granted. Therefore, no further discussion of the VCAA is warranted in this case as any deficiency has been rendered moot. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). It is the established policy of the 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(b). A 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. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). 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 or her age or to the impairment caused by nonservice- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is currently in effect for degenerative disc disease of the lumbar spine, evaluated as 20 percent disabling prior to March 19, 2008, and as 40 percent disabling thereafter; COPD with asthmatic bronchitis, evaluated as 30 percent disabling; a pain disorder, evaluated as 30 percent disabling; GERD with Crohn's disease, evaluated as 10 percent disabling; and allergic rhinitis, assigned a noncompensable rating. The Veteran's combined disability evaluation is 70 percent. See 38 C.F.R. § 4.25 (2012). Therefore, he satisfies the schedular requirements for consideration of a TDIU. See 38 C.F.R. §§ 3.340, 4.16. The record reflects that the Veteran previously worked as a medic for five years in service, and last worked in July 2006, according to his formal claim for a TDIU (VA Form 21-8940) received in June 2007. In his claim, the Veteran said that his service-connected disabilities affected his ability to work full time in July 2006 that was the date he last worked full time and that he became too disabled to work in April 2005. He reported that he last worked in 2006 as a medic, had four years of high school education, and had no other special training. Records associated with the Veteran's claim for Social Security Administration (SSA) disability benefits indicate that he earned a general equivalency diploma (GED). On December 7, 2007, N.K.A., M.D., the Veteran's VA primary care physician since September 2006 at the VA medical center (VAMC) in Marion, Illinois, reported that the Veteran had chronic pain syndrome secondary to his underlying medical problem that limited his ambulatory capability and functional capacity. The physician opined that the Veteran's condition was severe enough that it prevented him from gaining any meaningful job. According to this VA doctor, the Veteran's medical conditions were permanent and, given his medical condition, "it may be necessary for him to lie down [3 to 4] times during an 8 hour period to [relieve] his back pain." In September 2007, a VA physician assistant examined the Veteran and opined that, while the Veteran had some difficulty doing strenuous physical activities due to his service-connected low back pain, it should not prevent him from performing job activities related to a sedentary or physical type of employment. It was further noted that the Veteran's other service-connected disabilities, including COPD, allergic rhinitis, GERD and Crohn's disease were less likely to prevent him from performing any kind of job activities. The examiner concluded that the Veteran was not unemployable solely due to his service-connected disabilities. In a December 2008 VA general medical examination report, another physician assistant opined that the Veteran would be limited from heavy or light physical labor but would be able to perform at least sedentary labor. However, the September 2007 and December 2008 VA general medical examiners failed to provide any rationale for their opinions; specifically, they did not provide a basis as to why they concluded that the Veteran was capable of sedentary work. Also, a September 2007 VA mental disorders examination report indicates that the Veteran's pain and personality disorders were contributors to his inability to gain or maintain gainful employment but were not the sole reason he was unable to work. The examiner indicated that his physical disabilities were the cause, by his own report, of his inability to work. At a December 2008 VA mental disorders examination, the Veteran claimed he would be working if he did not have physical problems that made it difficult to stay in any position for very long. The examiner explained that the Veteran's psychological problems appeared related to the pain problems and, at best, would only cause transient problems under stress if he could work. He was not considered unemployable due to his service-connected mental disorder. However, in July 2011, the Veteran's attorney submitted a Vocational Report prepared by L.A.C., RN, CDMS, MS, to the effect that the Veteran was not capable of earning an annual income that exceeded the poverty threshold for one person. Ms. L.A.C. opined that the Veteran's "combination of physical and mental limitations would require special accommodations but because of his lack of marketable skills I do not believe any employer would accommodate him. I believe this [V]eteran is not employable as a combined result of his service connected problems." The current schedular rating of 40 percent for the Veteran's degenerative disc disease of the lumbar spine is reflective of limited motion and/or incapacitating episodes totaling one month in the past year. See 38 C.F.R. § 4.71a, Diagnostic Code 5299-5243 (2012). As such, it further supports a finding of severe, or at least very significant, occupational impairment due to degenerative disc disease of the lumbar spine. The current schedular rating of 30 percent for the Veteran's COPD with asthmatic bronchitis is reflective of some pulmonary restriction or a need for daily inhational or oral bronchodilator therapy. See 38 C.F.R. § 4.97, Diagnostic Code 6604-6602 (2012). This further supports a finding of moderate to severe occupational impairment due to COPD with asthmatic bronchitis. The current schedular rating of 30 percent for a pain disorder is reflective of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks. See 38 C.F.R. § 4.130, Diagnostic Code 9422 (2012). This further supports a finding of at least moderate occupational impairment due to a pain disorder. The current schedular rating of 10 percent for GERD with Crohn's disease is reflective of persistent and recurrent epigastric distress productive of considerable impairment of health. See 38 C.F.R. § 4.115a, Diagnostic Code 7346 (2012). This further supports a finding of moderate occupational impairment due to GERD with Crohn's disease. Here, the probative evidence of record demonstrates that the Veteran is severely disabled by service-connected lumbar spine, COPD, pain disorder, and GERD. Moreover, multiple medical professionals, as well as a vocational specicialist, have considered the Veteran's ability to work. A private opinion in December 2007 found that the Veteran was not employable due to his service-connected disabilities. A vocational specialist reached the same conclusion. While other opinions of record found otherwise, the evidence is deemed to be at least in equipoise on the essential question at issue, whether the Veteran is precluded from employment due to his service-connected disabilities. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. In Gilbert, supra, the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Resolving all doubt in favor of the Veteran, the Board finds that he is entitled to a grant of a TDIU. As such, the benefit sought on appeal is allowed. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs