Citation Nr: 1307271 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 07-25 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1967. 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 Indianapolis, Indiana. The case was remanded by the Board in December 2010 to afford the Veteran VA examinations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of a petition to reopen the previously denied claim of service connection for a lumbar spine disorder and service connection for a psychiatric disorder being referred 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. FINDINGS OF FACT 1. Service connection has been granted for residuals of a fracture of the C7 vertebrae with deformity of the vertebral body (20%); bilateral hearing loss (10%); and tinnitus (10%). The Veteran's combined service-connected disability rating is 40 percent. 2. The Veteran last worked substantially gainful full-time employment as an automobile repairman in 2004. 3. The Veteran's service-connected disabilities preclude his 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 I. 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 disabilities, particularly his cervical spine disability. See, e.g., December 2006 statement. 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 fracture of the C7 vertebrae with deformity of the vertebral body, evaluated as 20 percent disabling; bilateral hearing loss, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The Veteran's combined service-connected disability rating is 40 percent. As such, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis. It is also the policy of the VA, however, 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). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating, based on unemployability. Van Hoose, 4 Vet. App. at 363; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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 service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-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 disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. Initially, the Board observes that the Veteran has not submitted a VA Form 21-8940, "Veterans Application for Increased Compensation Based on Unemployability" despite being provided with such application in August 2005. Consequently, details of the Veteran's educational and training history are not of record. Regarding the Veteran's employment background, his statements throughout this appeal indicate that he was self-employed doing automobile repairing work for over 30 years. See, e.g., July 2007 substantive appeal He indicated that he left his last employment because of his cervical spine disability. Id. In connection with his claim for an increased rating for his cervical spine, the Veteran was afforded a VA examination in October 2005. He was still employed in an automobile repairing shop. He complained of chronic cervical spine and upper thoracic spine pain. The Veteran had occasional radiation of cervical spine pain to both upper extremities without any numbness. He denied any incapacitating episodes in the last 12 months or hospital admissions for his condition. No opinion regarding the effect of his cervical spine disability on his employability was provided. A letter from A.A., D.O. dated in November 2006 shows that it was recommended that the Veteran go on 100 percent disability through VA due to the multiplicity of his medical problems. According to that letter, the Veteran had some cervical, lumbar and left shoulder discomfort. He had cervical spinal stenosis as well as foraminal stenosis with degenerative joint disease and osteophyte formation throughout the cervical spine. An MRI of the left shoulder reportedly showed some bursitis. X-rays of the lumbar spine revealed degenerative joint disease through with some disc height narrowing, compatible with degenerative disc disease. The Veteran also had coronary artery disease, hyperlipidemia, hypertension and multiple paresthesias as well as myalgias. He was compliant with treatment for those disabilities and was currently fairly well controlled as far as those processes were concerned. An August 2007 SSA physical examination report indicates that the Veteran sought disability for both his chronic neck and back pain. He reported difficulty with using tools and engaging in his work because the activity set off his pain. The Veteran was diagnosed with chronic neck and back pain; there were limitations in the cervical spine consistent with degenerative disease. The prognosis was poor. The SSA decision awarding the Veteran disability benefits shows that the primary diagnosis was discogenic and degenerative disorders of the back and the secondary diagnosis was left shoulder pain. At a VA examination for his cervical spine in July 2009, the Veteran reported chronic pain, with flare-ups during repetitive motion. He was not working. During the last 12 months, he had not had any incapacitating episodes or hospital admissions for his condition. This examination also does not contain any opinion regarding whether the Veteran's cervical spine disability alone renders him unemployable. Pursuant to the Board's Remand, the Veteran was afforded another VA examination for his cervical spine in January 2011. He reported last working in 2004. He had been self-employed at an automobile body repair; he had done that all his life since he was 14 years old. The Veteran stopped working because he felt he could not do the work anymore. He could not get on the floor and bending and stooping caused a problem; mainly it was his lower back that was giving him the problem. With his cervical spine, he had episodes of terrible pain in between his shoulder blades. He took medication daily as need for pain with a good response; side effects made him fatigued. Flare-ups occurred two to three times a week. During flare-ups, he could not participate in anything major such as cutting a tree down. There were no incapacitating episodes of spine disease. Following a thorough examination, the examiner opined that the Veteran's cervical spine disability affected his ability to obtain and maintain employment in a position that would require him to look up and down repeatedly, hold his head in an up or down position for any period of time, look from side to side repeatedly, or to hold his head to one side or another for any period of time. He was also limited in his ability to lift and carry items over 20 pounds or working with his arms overhead. The rationale was that the Veteran got in severe pain when he moved his head to look up or down or side to side, when he was lifting heavy items, and when working with his arms overhead. The Veteran was also afforded a VA examination for his audiological disabilities in January 2011. He reported constant tinnitus. Following an exhaustive examination, the examiner opined that the Veteran had a profound loss in the right ear, which would cause some deficiency in sound localization. He would also have some trouble hearing in group situations, environments with background noise present, and was unable to use the telephone on his right ear. He still had excellent discrimination ability in his left ear although he reported needing to turn the volume up on his television and radio due to his high frequency hearing loss. 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 a TDIU. In this case, the severity of the Veteran's service-connected joint disability is reflected in the 20 percent rating for his cervical spine disability, while the severity of his audiological disabilities is reflected in the 10 percent ratings each for bilateral hearing loss and tinnitus. The Veteran's statements throughout this appeal have indicated that he has chronic cervical spine pain due to his service-connected disability. Additionally, he reported to the January 2011 examiner that pain medications, which he needs to take daily, make him fatigued. The Veteran is competent to report about his symptomatology and the side effects of treatment used 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 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 medical evidence of record showing the severity of the Veteran's service-connected cervical spine disability and the physical limitations resulting from that disability. As discussed above, Dr. A.A. opined that the Veteran is unemployable-this opinion takes into account the severity of the Veteran's cervical spine disability. Furthermore, the January 2011 examiner's opinion indicates that the Veteran's physical impairment from his cervical spine disability rendered him unable to perform work consistent with his employment background. As discussed above, the Veteran's pertinent employment history is that he did automobile repair. Considering his lifting limitations and impairment in the ability to move his head up or down or side to side, as well as his impaired ability to work with his arms overhead, the Board concludes that the Veteran is no longer able to work in automobile repair. There has been no evidence presented to suggest that the Veteran has the education or training experience necessary to work in office environments such that his cervical spine disability would not be affected. Moreover, considering the profound hearing loss in his right ear, the Board also concludes that sedentary employment would be challenging, especially as the VA examiner opined that the Veteran would have trouble hearing in group situations, environments with background noise present, and was unable to use the telephone on his right ear. Additionally, although the Board is not bound by findings of the SSA regarding unemployability, the Board does find it persuasive that the Veteran is receiving SSA disability benefits based, in part, on his cervical spine disability. Although the SSA decision also references the Veteran's lumbar spine and left shoulder disabilities, when affording the Veteran the benefit-of-the-doubt, for the reasons set forth above, the Board concludes that the Veteran's service-connected disabilities of his cervical spine and bilateral hearing loss render him unemployable. Even without taking into account the Veteran's nonservice-connected disabilities, as the Veteran has identified no special training; as his cervical spine disability causes constant pain and limitations in moving his head and lifting; and as his bilateral hearing loss causes limitations in hearing, 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 fracture of the C7 vertebrae with deformity of the vertebral body; bilateral hearing loss; and tinnitus, 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 working in automobile repair. In this case, there is nothing in the record to indicate that the Veteran's former substantially gainful employment in automobile repair would allow him to work with any 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 Dr. A.A. and the VA examiners, 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