Citation Nr: 1313748 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-34 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) prior to June 24, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty service from October 1958 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, granted service connection for intervertebral disc syndrome and right lower extremity sciatic nerve involvement. An initial rating of 10 percent was assigned for both disabilities, effective August 29, 2006. In January 2009, the RO granted service connection for left lower extremity radiculopathy, and assigned an initial rating of 20 percent, effective June 4, 2008. The Veteran has not expressed disagreement with this decision. A July 2010 Decision Review Officer (DRO) decision assigned an effective date of May 15, 2006 for service connection for intervertebral disc syndrome and right lower extremity sciatic nerve involvement. An initial rating of 20 percent for right lower extremity sciatic nerve involvement was also assigned, effective May 15, 2006. In April 2011, the Veteran testified before the undersigned at a hearing at the RO. A hearing transcript has been associated with the claims file. In June 2011, the Board remanded the appeal for further development. A June 2012 rating decision granted the Veteran a 40 percent disability rating for his right lower extremity sciatica as of August 3, 2011; increased his rating for left lower extremity neuritis to 40 percent from August 3, 2011; and granted the Veteran entitlement to individual unemployability (TDIU) as of August 3, 2011. The appeal was returned to the Board in October 2012, at which time the Board determined that the Veteran had withdrawn his claim for an increased evaluation for his back disability. The Board also assigned an initial evaluation of 40 percent, but no higher, for right lower extremity sciatica. These matters are final and will not be revisited in the current decision. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2012); 38 C.F.R. § 20.1105 (2012). In the October 2012 decision, the Board also awarded the Veteran TDIU, effective from June 24, 2008. The Board remanded the matter of entitlement to TDIU prior to June 24, 2008 in order to allow the Director of VA's Compensation and Pension Service an opportunity to consider an extraschedular allowance. This has been accomplished, and the matter has been returned to the Board for further appellate consideration. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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). FINDINGS OF FACT As of May 15, 2006, the Veteran's service connected disabilities precluded more than marginal employment. CONCLUSION OF LAW The criteria for an effective date of May 15, 2006, for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 3.341(a), 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This decision grants TDIU effective the date the earliest date on which any condition was service connected. There was no legal entitlement prior to that date, because TDIU could only be granted on the basis of a service connected diseases or disabilities. Hence, no further notice or assistance is required. See Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). TDIU TDIU is assigned where the combined rating for the Veteran's service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, 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 ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As noted in the October 2012 Board decision, the claim for TDIU is an element of the initial rating for the right sciatic nerve disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Because this claim arises from an appeal of the initial evaluation following a grant of service connection, and because service connection has been in effect since May 15, 2006; VA is required to consider entitlement to TDIU during the entire period beginning that date. The Veteran is already in receipt of TDIU from June 24, 2008, hence the question of his entitlement to TDIU on and after that date is not before the Board. In this case, service connection was in effect for two disabilities prior to June 24, 2008, and the effective date of service connection was May 15, 2006 for each disability. These disabilities were a 40 percent evaluation for right lower extremity sciatic nerve involvement associated with lumbar spine intervertebral disc syndrome with degenerative changes, evaluated as 40 percent disabling; and lumbar spine intervertebral disc syndrome with degenerative changes, evaluated as 10 percent disabling. Both of these evaluations remained unchanged between May 15, 2006 and June 24, 2008. The combined evaluation for this period was 50 percent. Thus, the Veteran did not meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). In accordance with the October 2012 remand, the Veteran's claim was forwarded to the Director of VA's Compensation and Pension Service for extraschedular consideration. His March 2013 report notes that the Veteran has a Masters Degree in Fine Arts and worked as a Courier from May 2001 to August 2010 for 80 hours a week for six months a year. He had also worked as a Design Consultant from 1985 to April 2006. The report noted that there was evidence in a March 2006 private medical record that the Veteran was working as of that time, and that the first evidence that he was unable to work was found in a December 2008 private medical record. The Director determined that there was no evidence to warrant an extraschedular grant of TDIU prior to June 24, 2008, as the Veteran was working full time during that period. As the Director of VA's Compensation and Pension Service has considered entitlement to TDIU on an extraschedular basis, the Board may now examine entitlement to TDIU on that basis. Anderson v. Principi, 18 Vet. App. 371 (2004). The medical evidence includes a June 2006 private medical record which notes that the time the Veteran spent behind the wheel driving for work aggravated all of the symptoms related to his back and sciatic nerve. Lifting also aggravated all of his symptoms, and he was unable to avoid lifting at work. In January 2007 a private medical record reported continued back pain that was exacerbated by the prolonged sitting associated with his job. He had very limited times without pain. A February 2007 private medical record notes continued back pain, and states that the Veteran worked in sculpture and pottery, and worked as a Courier to bring in a little money. The Veteran was treated at the emergency room in March 2007 after his back went out when he bent over to pick up a pen from the floor. A June 2008 private medical report states that the Veteran was forced to give up his job as a Courier in April 2008; this was only partly due to back pain and he felt a need to return to work. He returned to work in July 2008. His pain was increased as he was not able to use pain medications while driving. A November 2008 VA homeless outreach assessment report states that the Veteran had earned $600 in the past month working as a contract driver. However, he said he made little actual income from this job due to having to pay the associated costs for gas, insurance, and maintenance of his vehicle. He had worked 15 out of the previous 30 days. A November 2008 vocational rehabilitation consultation report shows that he had worked on-call as an independent contract driver from 2001 to the present. This job required sitting in the vehicle for long trips and was aggravating his back disability. VA Examinations were conducted on August 3, 2011 and August 8, 2011, in part to determine whether the Veteran is employable. The examiner who conducted the August 3, 2011 orthopedic examination stated the functional impairment of the lumbosacral spine is severe and the functional impairment of the thoracic spine is moderately severe. The examiner opined that it is his impression as the examining board-certified orthopedic surgeon that the Veteran's lumbar and thoracic spine conditions would preclude him from obtaining or maintaining gainful employment. The examiner stated that he could not tolerate any lifting, nor would he tolerate sedentary work because of increased back pain with sitting. The examiner who conducted the August 8, 2011 neurology examination stated that the Veteran has repeatedly attempted to obtain or gain employment, but has not been successful. The examiner opined that it is likely he could never pass the probationary period because of the severity of the neurologic impairment and the Veteran's chronic back pain syndrome. The examiner opined that the service-connected disabilities preclude the Veteran from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The Veteran submitted a formal application for TDIU in September 2010. He indicated that from May 2001 to August 2010, his highest gross earnings per month had been $718.00. He additionally indicated that his disability affected full-time employment beginning in April 2006, which was the last date that he had worked full time. While the evidence shows that the Veteran worked on at least a part time basis between 2006 and 2008, there is another factor for consideration. Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The poverty threshold for 2006 for an individual, as determined by the federal government, was $10,294. Available at http://www.census.gov/hhes/www/poverty/data/threshld/thresh06.html. Similarly, the poverty threshold for 2007 for the Veteran was $10,590. Available at http://www.census.gov/hhes/www/poverty/data/threshld/thresh07.html. Therefore, if the Veteran had made his highest reported earning per month during this period of $718 for twelve consecutive months, this would still put him below the poverty threshold during the relevant period. The weight of the evidence is to the effect that the impairment in earnings was due to the effects of the service connected back disability. Based on the foregoing, the evidence demonstrates that the Veteran's service connected disabilities have combined to prevent him from working in substantially gainful employment from at least the May 15, 2006 date that service connection was awarded for his disabilities. Although there were weeks were the Veteran worked for 60 to 70 hours, this equated to approximately six months out of the year. Based on the income he earned from his job, this is deemed to be marginal employment. As the Veteran has held only marginal employment from May 15, 2006, and as he has been deemed unemployable by VA examiners, he is eligible for a TDIU rating from that date. Therefore, the Veteran is entitled to TDIU as of May 15, 2006. ORDER Entitlement to TDIU from May 15, 2006 is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs