Citation Nr: 1315065 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 06-36 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active military service from December 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 and September 2006 rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In pertinent part of the January 2006 decision, the RO denied entitlement to TDIU and in the September 2006 rating decision the RO denied service connection for a low back disability. Subsequently the Appeals Management Center in a rating decision in February 2013 granted service connection for a low back condition and this issue is no longer in appellate status. This case was previously before the Board in December 2009 and September 2012 and was remanded for additional development. The RO has complied with the remand directives. A review of the Virtual VA paperless claims processing system includes additional documents which have been considered. FINDINGS OF FACT 1. The Veteran is service-connected for Achilles tendonitis of the left foot at 30 percent disabling; Achilles tendonitis of the right foot at 30 percent disabling, adjustment disorder with mixed anxiety and depression mood associated with Achilles tendonitis at 30 percent disabling; low back disorder associated with Achilles tendonitis at 20 percent disabling; radiculopathy of the left lower extremity at 20 percent disabling; and radiculopathy of the right lower extremity at 10 percent disabling. His combined evaluation is 80 percent. 2. The Veteran's service-connected disabilities preclude substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board has considered this legislation, but finds that, given the favorable action taken below, no discussion of the VCAA at this point is required. Merits of the Claim VA law provides a total rating for compensation where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided 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). For the purposes of one 60 percent disability and one 40 percent disability disabilities of one or both upper extremities or of one or both lower extremities including the bilateral factor will be considered as one disability. Furthermore, disabilities affecting a single bodily system, such as orthopedic, and disabilities from a common etiology will be considered as one disability. 38 C.F.R. § 4.16(a). In determining whether a Veteran is able to secure or follow a substantially gainful occupation, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. 38 C.F.R. § 4.16(a). If the Veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he or she is unable to maintain substantially gainful employment due to his or her service-connected disabilities, the Veteran's claim for a TDIU rating cannot be denied in the absence of medical evidence showing that he or she is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294 (1994). In discussing the unemployability criteria, the Court has indicated that the unemployability question, or the Veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran is presently in receipt of service connection for the following: Achilles tendonitis of the left foot at 30 percent disabling; Achilles tendonitis of the right foot at 30 percent disabling, adjustment disorder with mixed anxiety and depression mood associated with Achilles tendonitis at 30 percent disabling; low back disorder associated with Achilles tendonitis at 20 percent disabling; radiculopathy of the left lower extremity at 20 percent disabling; and radiculopathy of the right lower extremity at 10 percent disabling. His combined evaluation for compensation is 80 percent. As the Veteran's orthopedic disabilities, including his bilateral Achilles tendonitis and back disorder, combine to provide him with at least a 60 percent rating, that rating shall be considered as one disability. 38 C.F.R. § 4.25. Given that the Veteran has a combined rating of 80 percent, he meets the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16(a). The remaining question is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Consideration may be given to the Veteran's education, training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The Veteran reported that he was last employed as a clerk for the United States Postal Service in May 2008. On his March 2011 application for unemployability benefits, the Veteran alleged that he retired due to his disability. The Veteran underwent a VA examination in March 2010 to assess the severity of his bilateral Achilles tendonitis. The examiner opined that the Veteran's occupation as a postal clerk was not impaired by his disorders and his activities of daily living were not affected. The Veteran submitted a letter from his physician, W.L., D.O., dated in October 2010. Dr. L. stated that the Veteran is noted to suffer from chronic low back discomfort and bilateral persistent Achilles tendonitis. He opined that the Veteran's back disorder is caused by the chronic bilateral Achilles tendonitis and that the Veteran should not return to work. The Veteran submitted a letter from his chiropractor, R.L., D.C, dated in November 2010. Dr. L. stated that the Veteran has a long history of chronic back and bilateral ankle/foot pain. He opined that the Veteran is disabled and unable to work due to his back condition and bilateral Achilles tendonitis. He stated that any type of return to work would only exacerbate his current conditions. The Veteran also submitted a letter from his physician, J.S.W., D.O., dated in November 2010. Dr. J.S.W. stated that the Veteran suffers from chronic low back pain, which is caused by his chronic bilateral Achilles tendonitis. He opined that this precludes the Veteran from returning to work. January 2011 and April 2011 treatment records shows that the Veteran's low back and left thigh/calf pain causes varying degrees of interference with activities of daily living, including sleep, activity, work, mood, and interaction with family/friends/co-workers. At an April 2011 VA examination, the examiner noted a mild functional impairment of the Veteran's lower back. The examiner did not comment on the impact of the Veteran's impairment on his employability. The Veteran underwent a VA examination for his back in October 2012. The examiner opined that his low back disorder was secondary to his bilateral Achilles tendonitis. The examiner further opined that the Veteran's spine disorder impacts his ability to work due to that fact that the Veteran has pain on a daily basis. It is not clear whether the Veteran may be employable in a different work environment. Nevertheless, the evidence is at least in relative equipoise as to whether he is able to engage in substantially gainful employment. Given the severity of his service-connected orthopedic disabilities with a combined rating of at least 60 percent and his associated radiculopathies and mental disorder, the Board finds that the Veteran is unable is to secure or to follow substantially gainful employment due to his service-connected disabilities. Therefore, the Board will resolve all doubt in favor of the Veteran and grant a total disability based on individual unemployability. ORDER Entitlement to a TDIU is granted. ____________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs