Citation Nr: 1317673 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 04-42 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU rating) for the period prior to June 29, 2012. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to June 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal following a March 2011 Board remand that determined that the issue of entitlement to a TDIU rating was raised during the pendency of the Veteran's previously appealed increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A prior July 2009 RO rating decision denied a claim for a TDIU rating. An October 2012 Board decision dismissed the Veteran's claim for a TDIU rating for the period since June 29, 2012. The Board remanded the issue of entitlement to a TDIU rating for the period prior to June 29, 2012, for further development. FINDINGS OF FACT 1. For the period prior to June 29, 2012, the Veteran's service-connected disabilities were major depression (rated 50 percent); a low back disability (rated 40 percent); right lower extremity sciatic neuropathy (rated 20 percent); left lower extremity sciatic neuropathy (rated 40 percent); residuals of a groin injury, including a varicocele and orchialgia (rated 30 percent); residuals of a groin injury, including a varicocele and orchialgia, on an extraschedular basis (rated 10 percent); tinnitus (rated 10 percent); and bilateral hearing loss (rated 0 percent). The combined disability rating was 90 percent. 2. For the period prior to June 29, 2012, the Veteran's service-connected disabilities were of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating for the period prior to June 12, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to a TDIU rating for the period prior to June 28, 2012. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). 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 age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad v. Brown, 5 Vet. App. 524 (1993); VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment as a result of service-connected disability. 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). "A claim for TDIU presupposes that the rating for the condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Pursuant to 38 C.F.R. § 3.340(a) (2011), "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 determination whether a person is capable of engaging in a substantially gainful occupation must consider both the person's abilities and his employment history. Faust v. West, 13 Vet. App. 342, 355 (2000). Facts and Analysis For the period prior to June 29, 2012, the Veteran's service-connected disabilities were major depression (rated 50 percent); a low back disability (rated 40 percent); right lower extremity sciatic neuropathy (rated 20 percent); left lower extremity sciatic neuropathy (rated 40 percent); residuals of a groin injury, including a varicocele and orchialgia (rated 30 percent); residuals of a groin injury, including a varicocele and orchialgia, on an extraschedular basis (rated 10 percent); tinnitus (rated 10 percent); and bilateral hearing loss (rated 0 percent). The combined disability rating was 90 percent. Thus, the Veteran satisfied the percent rating standards for a TDIU rating under 38 C.F.R. § 4.16(a) for the period prior to June 29, 2012. The remaining question before the Board is whether the Veteran was unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background, for the period prior to June 29, 2012. The Veteran indicates that he completed two years of high school and that he last worked in March 2007 as a mechanic. He reports that he left his position as a result of his service-connected disabilities, to specifically include his service-connected low back disability and right and left lower extremity sciatic neuropathy. For the period prior to June 29, 2012, there are multiple VA examination reports, as well as a VA physician statement, that include opinions addressing the Veteran's employability during the period prior to June 29, 2012. For example, a November 2008 VA neurological examination report noted that the Veteran's claims file was reviewed. The Veteran reported that increased symptoms of his low back disability and right and left lower extremity sciatic neuropathy had caused him to quit his job. The diagnoses were right sciatic neuropathy; left sciatic neuropathy; and chronic low back pain. The examiner reported that he would rate the Veteran's right sciatic neuropathy to be of moderate severity and that he would rate the Veteran's left sciatic neuropathy as at least moderate and approaching severe. The examiner commented that the combination of severe low back pain, as well as sciatic neuropathy in the lower extremities, greatly affected the Veteran's usual activities and had made his employment impossible. A December 2008 VA examination report included a notation that the Veteran's claims file was reviewed. The examiner indicated, as to an assessment, that the Veteran's back was painful over the entire thoracic and lumbar spine, and that continuing symptoms were diagnosed as chronic muscular strain superimposed on degenerative instability. The examiner stated that the nerve roots probably had some irritation that was worse on the left. The examiner also indicated that the Veteran's back pain symptoms were probably worsened by chronic tension and/or depression. The examiner commented that the Veteran's working capacity was severely limited by his back problem. The examiner reported that the Veteran was limited to light work and that his work needed to be mostly sitting. It was noted that the Veteran needed to change position as necessary for comfort. The examiner indicated that the Veteran also needed to be able to lay down occasionally as necessary for comfort. A March 2009 VA genitourinary examination report noted that the Veteran's Veteran's Computerized Patient Record System (CPRS) was reviewed, but that his claims file was not available. The examiner reported that the Veteran had chronic orchiodynia, with pain that was exacerbated by any significant physical activity including intercourse. The examiner reported that the Veteran's chronic orchiodynia had a major impact on his employment which had always involved physical activity. It was noted that the Veteran was presently unemployed and that he had not found work that could be performed without a lot of testicular pain. The diagnoses included status post severe testicular injury; chronic orchiodynia, left much worse than right; and impotence of organic origin, with significant psycho-social dysfunction secondary to the inability to parent a child, with a severe negative impact on relationships. Benign prostatic hypertrophy, as well as a small, immediately reducible hernia in the mid portion of the left inguinal canal, were also diagnosed. The examiner commented that the Veteran's severe level of orchiodynia had made him unemployable at any physical employment. A December 2009 VA psychiatric examination report indicated that the Veteran's claims file was reviewed. The Veteran reported that he had not worked in over two years. He stated that his body just gave out. He indicated that his (left) leg and foot would be numb and that he could not bend over anymore, so he had to quit his job. The Veteran reported that his boss noticed that he was always having to take off his steel-toed shoes at work and told the Veteran that he could not keep removing his shoes. He maintained that he was medically disabled and retired. It was noted that the Veteran's length of time as a mechanic was about fourteen years at one job for a construction company and some shorter periods of employment through the years. The Veteran stated that he believed his loss of employability had to do with his multiple physical disabilities, and not just any psychiatric issues. He indicated that he felt that his psychiatric problems were secondary to his multiple service-connected disabilities. The diagnoses were chronic pain syndrome with both medical and psychological factors related to physical disabilities, continuously medicated, and major depression, recurrent, severe, secondary to chronic pain syndrome, and continuously medicated with two antidepressant medications, with pain exacerbating the depression and resulting in a sleep disorder. Symptoms of mixed personality problems, insufficient for a formal diagnosis, were also reported by the examiner. A Global Assessment of Functioning (GAF) score of 40 was assigned. The examiner commented that the Veteran appeared to be individually unemployable due to multiple service-connected disabilities, with secondary severe depression due to chronic pain syndrome. The examiner indicated that the onset of the Veteran's depressive disorder was of more recent history and that it coincided with an escalation in the severity of his service-connected disability, which resulted in a loss of employment two years prior to the examination. An April 2012 VA examination report noted that the Veteran's claims file was reviewed. The Veteran reported that he worked in oilfields from 1974 to 2004, and that he worked as millwright and performed lumber mill machinery work until 2007. It was noted that the Veteran received disability benefits from the Social Security Administration for his low back and for diabetes for one year. The Veteran indicated that he lived alone and that he would spend forty-five minutes performing chores. The Veteran reported that he had to change from sitting to standing, alternating every forty minutes. He stated that he could only walk up to one block because of his left leg and foot problems, and that he could stand up to 30 minutes before he had low back pain. It was noted that the Veteran stated that he could pick up and carry a bag of groceries. The Veteran maintained that he never went up stairs, that he could drive a car for forty-five minutes, and that he could lift a half gallon of milk over his head, right or left, with neck and shoulder pain. The Veteran indicated that his chief complaint was low back pain and that his second severe problem involved pain down his left thigh and leg. He also complained of problems with sleep and depression; groin pain one day a week; abdominal pain daily; daily left foot pain; and pain in his neck and shoulders. As to an impression, the examiner commented that the Veteran's service-connected disorders currently limited him to sedentary occupations, with the need to be able to change from standing to sitting to standing, etc., every 30 minutes. It was noted that the Veteran could not perform stooping or squatting. A May 2012 statement from a VA physician indicated that Veteran's claims file was reviewed. The physician reported that the Veteran's primary occupational limitations were difficulty with lifting or carrying a bag of groceries (approximately ten to sixteen pounds); an inability to do a half squat; and the ability to stand for a maximum of thirty minutes. The physician stated that such limitations were associated with the Veteran's service-connected low back disability. The physician maintained that Department of Labor indicated that "sedentary" occupational status allowed for an occasional lift of ten pounds and that "light" occupational status required occasional lifting of 20 pounds, as much as a third of the day. The physician commented that service-connected low back disorder would allow him to do most sedentary occupational placements, but light occupational placement would depend on the specific characteristics of a specific job placement, as well as adaptations as allowed by "ADA", job task techniques, etc., and required job placement on a case by case basis. The examiner indicated that with the currently available information, the Veteran's right and left sciatic neuropathy, as well as his orchalgia/varicocele residuals of a groin injury, would not be expected to limit him from that occupational placement that his back allowed. A review of the evidence indicates that the Veteran completed two years of high school and that he reports that he last worked in March 2007. There are several opinions of record from VA examiners indicating that the Veteran is unemployable. A VA examiner, pursuant to a November 2008 VA neurological examination report, commented that the combination of severe low back pain, as well as sciatic neuropathy in the lower extremities, greatly affected the Veteran's usual activities, and had made his employment impossible. Additionally, A VA examiner, pursuant to a March 2009 VA genitourinary examination report, stated that the Veteran's severe level of orchiodynia had made him unemployable at any physical employment. Further, in December 2009, a VA examiner, pursuant to a psychiatric examination, maintained that the Veteran appeared to be individually unemployable due to multiple service-connected disabilities, with secondary severe depression due to chronic pain syndrome. There are also opinions of record from VA examiners that the Veteran could perform sedentary employment. A VA examiner, at the time of a December 2008 VA spine examination, indicated that the Veteran's working capacity was severely limited by his back problem. The examiner reported that the Veteran was limited to light work and that his work needed to be mostly sitting and that he needed to be able to change position, and to lie down, as necessary for comfort. The examiner did not refer to any occupations that would allow the Veteran to lie down for comfort. The examiner also solely addressed how the Veteran's service-connected low back disability affected his employment. Additionally, an examiner, pursuant to an April 2012 examination report, indicated that the Veteran's service-connected disorders currently limited him to sedentary occupations, with the need to be able to change from standing to sitting to standing, etc., every 30 minutes. However, the examiner also reported that the Veteran could not perform stooping or squatting. The examiner also did not refer to the types of occupations that would allow the Veteran to change from standing to sitting to standing every thirty minutes. Additionally, in a May 2012 statement, a VA physician commented that the Veteran's low back disorder would allow him to do most sedentary occupational placements, but light occupational placement would depend on the specific characteristics of a specific job placement, as well as adaptations as allowed by "ADA", job task techniques, etc., and required job placement on a case by case basis. The examiner commented that with the currently available information, the Veteran's right and left sciatic neuropathy, as well as his orchalgia/varicocele residuals of a groin injury, would not be expected to limit him from that occupational placement that his back allowed. The VA physician only addressed whether the Veteran's low back disability, his right and left sciatic neuropathy, and his orchalgia/varicocele and residuals of a groin injury, would allow him to perform sedentary employment. The VA physician did not address whether all of the Veteran's service-connected disabilities would allow him to perform sedentary employment. The Board observes that although the examiners, pursuant to the December 2008 VA spine examination report and the April 2012 VA examination report, as well as the May 2012 VA physician, respectively, all indicated that the Veteran could perform sedentary employment, there is little, if any evidence, that the Veteran has experience in employment that would qualify him for employment that did not involve prolonged heaving lifting or prolonged standing or walking. Even if such employment were feasible, it is unclear whether such employment could be gainful, given the Veteran's numerous service-connected disabilities. Therefore, the Board finds those opinions are less probative in this matter. Based upon the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's service-connected disabilities alone have rendered him unable to secure or follow a substantially gainful occupation for the period prior to June 29, 2012. Accordingly, he is entitled to a TDIU rating for the period prior to June 29, 2012. ORDER A TDIU rating for the period prior from June 29, 2012, is granted. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs