Citation Nr: 1323289 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 06-34 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran had active service from November 1975 to November 1979 and from December 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision from the Department of Veterans Affairs (VA), Regional Office (RO), in Milwaukee, Wisconsin. In October 2007, the Veteran withdrew his request for hearing before the Board; consequently, there are no outstanding hearing requests of record. 38 C.F.R. § 20.702(e). This matter was previously before the Board in April 2010 at which time it was remanded for additional development. In December 2011, the Board affirmed the denial of the claim for TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court vacated the December 2011 Board decision and remanded the matter consistent with the instructions set forth in the June 2012 Joint Motion for Remand. The matter has been returned to the Board and is ready for appellate disposition. The Veteran has submitted additional evidence in support of his claim for TDIU, to include VA outpatient treatment records, Social Security Administration Records, his Vocational Rehabilitation file, and a Vocational Report. The Veteran waived initial RO review of the newly submitted evidence and as such, it was considered in preparation of this decision. 38 C.F.R. § 20.1304(c). Additional VA outpatient treatment records dated after November 2012 and up until January 2013 were added to Virtual VA (VA's electronic database storage). While the RO has not considered these records in connection with the Veteran's claim for TDIU, the Board finds no prejudice to the Veteran in light of the full grant of benefits sought in the instant appeal. The Board notes that a July 2012 rating decision assigned a 100 percent disability rating for the service-connected left hip disability from March 16, 2012, the date of his hip replacement surgery to May 31, 2013, the last day of the month following a one-year, 100 percent rating following implantation of his prosthesis. A 30 percent disability rating was assigned following prosthetic replacement of the hip from June 1, 2013. An April 2013 letter from VA acknowledges receipt of his written disagreement with the July 2012 decision; however, such notice of disagreement is not contained with the claims file or Virtual VA. The Board has not found a lack of procedural due process at this juncture, i.e. lack of issuance of a statement of the case, as it is not clear from the record as to the content of the notice of disagreement. Such clarification and procedural due process must be remedied when the claims file returns to the RO. Finally, in December 2011, the Board referred claims of rating increases for the service-connected bilateral hip disabilities. As noted above, the left hip was adjudicated in July 2012. It does not appear that the claim for an increased disability rating of the right hip disability has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for clarification and appropriate action. FINDINGS OF FACT 1. The service-connected disabilities are rated as follows: residuals of right ankle sprain, rated at 30 percent disabling; osteoarthritis of the left hip, status post hip arthroplasty associated with osteoarthritis of the right hip, rated at 30 percent disabling; pes planus of the right foot associated with residuals of right ankle sprain, rated at 20 percent disabling; osteoarthritis of the right hip associated with residuals of right ankle sprain, rated at 20 percent disabling; hypertension, rated as 10 percent disabling; and hemorrhoids, rated as noncompensable. The combined disability rating is 80 percent (employing the bilateral factor of 6.9 percent), effective from June 2013. 2. The service-connected disabilities are shown to be productive of an overall disability picture manifested by the Veteran being precluded from working at substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating by reason of service-connected disabilities are met. 38 U.S.C.A. §§ 501, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Board believes no discussion of compliance with the notice and assistance provisions is necessary at this time. There is no prejudice to the Veteran as the benefits sought have been granted in full. II. Analysis The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A TDIU is assigned when service-connected disabilities result in such impairment of mind or body that the average person is so disabled that he is precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. The service-connected disabilities must be so severe as to produce unemployability, in and of themselves, without regard to unemployability attributable to age of the Veteran or to other disabilities for which service connection has not been granted. 38 C.F.R. § 3.341. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). 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). Finally, marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a Veteran's earned income does not exceed the amount established by the United States 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, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a), see Faust v. West, 13 Vet. App. 342 (2000). In the present case, service connection is in effect for: residuals of right ankle sprain, rated at 30 percent; pes planus of the right foot associated with residuals of right ankle sprain, rated at 20 percent; osteoarthritis of the right hip associated with residuals of right ankle sprain, rated at 20 percent; osteoarthritis of the left hip, status post hip arthroplasty associated with osteoarthritis of the right hip, rated at 30 percent; hypertension, rated as 10 percent; and hemorrhoids, rated as noncompensable. As the first three disabilities resulted from a common etiology, namely the Veteran's right ankle sprain, they are considered as one disability with a combined disability rating of 60 percent. See 38 C.F.R. § 4.25. The combined rating for all of the Veteran's service-connected disabilities is 80 percent (employing the bilateral factor of 6.9 percent), effective from June 2013. See Rating Code Sheet dated July 19, 2012. Thus, the Veteran meets the threshold requirements for consideration of TDIU under 38 C.F.R. § 4.16(a). However, for a grant of TDIU there must also be evidence that he is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. In other words, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question now presented is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. For the following reasons, the Board finds the evidence both for and against the claim but resolves reasonable doubt in the Veteran's favor. There is little dispute regarding the fact that the Veteran has been unemployed for an extended period. As indicated in his March 2005 claim for TDIU (see VA Form 21-8940), the Veteran reported that he became unable to work in 2004, and that he last worked full time in March 2005. While the Board acknowledges that the Veteran has additional problems with non-service-connected conditions to include, but not limited to, anxiety, status post left foot surgery, diabetes, obesity, and history of substance abuse, there is no evidence of record that indicates whether these nonservice-connected conditions produce a significantly greater level of impairment as opposed to the service-connected disabilities. Here, weighing in favor of the Veteran's claim include, but are not limited to, Social Security Administration disability determination findings, lay contentions from the Veteran, records from the Veteran's Vocational Rehabilitation file, a March 2007 VA examination report, and a January 2013 Vocational Assessment. The September 2008 Social Security Administration determination shows that the Veteran had not engaged in substantial gainful activity since March 2005 supported by the Veteran's medical records, testimony, and earnings record. Social Security Administration determined that the Veteran had severe impairments from osteoarthritis of the bilateral hips, as well as obesity, and multiple degenerative changes of the left foot status post bunionectomy. The Veteran was adjudged disabled as of October 2006. He was limited to lifting and carrying no more than 20 pounds occasionally and no more than 10 pounds frequently; limited to standing and or walking no more than two hours total in an eight hour work day; sitting no more than six hours total in an eight hour workday; limited to climbing, balancing, stooping, kneeling, crouching, and crawling no more than occasionally; and precluded from working in the presence of excessive vibration and working around hazards such as unprotected heights or moving machinery. The Social Security Administration further found the Veteran was unable to perform past relevant work (commercial floor cleaner) and that he had not been able to transfer any job skills to other occupations. In making this finding, the determination cited to the testimony of the impartial vocational expert who found that the Veteran did not have any acquired work skills transferable to work within the residual functional capacities defined above. The Social Security Administration also determined that the Veteran's inability to stoop and the need to alternate positions at will throughout the course of an eight hour workday would prevent him from performing even a substantial range of sedentary work. The Social Security Administration determination is persuasive. However, as Social Security Administration considered the effect of non-service-connected disabilities on his ability to work, it is not dispositive. Other evidence in favor of the claim includes a September 2005 Report of Contact with the Veteran's podiatrist who called to verify the Veteran had limitations to employment. Specially, the Veteran should not be on his feet all day and should find another line of work (other than commercial floor cleaner). The Veteran also has a long history of working with Vocational Rehabilitation. As far back as June 1999, a counseling narrative shows his service-connected disabilities prevented him from maintaining jobs that were physically demanding as he was unable to stand for prolonged periods of time. As a result of counseling, it was determined that the Veteran had an impairment of employability. He had difficulty obtaining competitive employment, did not possess alternative suitable skills or qualifying work history, and did not possess sufficient transferable skills based on his military experiences to acquire suitable civilian employment. It was further determined that the Veteran's impairment of employability was in substantial part due to his service-connected disability through its physical effects. He could not overcome the impairment through his current unskilled employment position. He was determined to possess a "serious employment handicap," based on a history of poor adjustment in training and employment and an extensive history of unemployment over the past approximate 20 years, albeit related to both service and non-service connected disabilities. In a May 2000 Vocational Rehabilitation Needs Inventory the Veteran reported no longer being able to work in the field that had been working in all his life (warehouse and factory work) as they required standing all day and heavy lifting. He was determined to have an impairment in employability in substantial part from a service-connected disability. The Veteran did not continue to pursue Vocational Rehabilitation services and his file was closed; he reapplied in 2005. An April 2005 narrative report reveals the Veteran reported working a 32-hour a week custodial job, but lost the job due to excessive absence related to being on his feet too much. In December 2005, he was determined eligible to receive VR services. A January 2006 Synthesis of Evaluation Determination shows the Veteran had been found to possess an impairment to employment to which his service-connected disabilities "substantially contribute[d]." Feasibility was still undetermined as of that point. In August 2006, after extended evaluation, he was determined to be reasonably feasible to pursue a vocational goal. The Veteran was determined not to posses marketable skills and thus, would be in need of a long-term training program. Based on the remediation of his academic skills, his goal was packaging and label printing. A July 2009 Special Report of Training shows the Veteran's hips were not doing well and he was in need of hip replacements. His medical issues were considered a major barrier to him completing his training to become rehabilitated. A Vocational Rehabilitation note dated in October 2009 indicated the Veteran was unable to pursue his Individualized Written Rehabilitation Plan due to his medical condition. There was a possibility of surgery in the near future and the Veteran was facing a long convalescence. A December 2009 Vocational Rehabilitation memorandum shows the Veteran had to withdraw from his training program in September 2008 due to a worsening of his service-connected disabilities. Pursuing a Vocational Rehabilitation goal was adjudged not feasible and that feasibility would not likely return in the next 12 months. The parties agreed that pursuing a vocational goal would add further aggravation to his disabling conditions. A February 2010 Vocational Rehabilitation Discontinue Closure Statement revealed the Veteran was in need of surgery on his hips and the period of convalescence would be over one year. He was unable to pursue planned service and was not feasible to pursue a vocational goal. Reports of VA examination as early as June 2003 show the Veteran had to sit a couple of hours a day when his foot pain flared and he was unable to continue working during that time. The Veteran told the VA examiner in July 2004 that he had right foot pain precipitated by standing for longer than 20 to 30 minutes necessitating that he took frequent breaks where he could sit. VA treatment providers in March 2005 noted the Veteran reported difficulty dealing with his job as a result of pain. The June 2006 VA examiner found that the Veteran's foot condition would require him to limit his walking, treading, and climbing stairs. He could also not stand for long periods time. The Veteran's hip condition was found to limit bending, crawling, kneeling, stooping working on cluttered floors , and limit his ability to reply quickly to emergency situations. He missed 20 to 25 days of work in the last year due to a combination of foot, ankle and hip pain. During VA examination in March 2007, the Veteran indicated he was unable to work as a janitor secondary to pain. He was unable to work full-time hours as required due to his inability to stand for prolonged periods. He was only able to stand about 30 minutes. He had to take time off about three days a month due to pain and by the end of his shift, pain in his right ankle and both hips would make him "crawl out of his car." The VA examiner noted the Veteran was unable to work in his usual occupation because of the standing and walking required with activities. The Veteran's pes planus was found to cause "much disability, with an inability to complete the tasks needed for his usual occupation." The Veteran underwent a left total hip arthroplasty in March 2012. In January 2013, the Veteran requested a Vocational Assessment to determine whether his service-connected disabilities prevented him from following a substantially gainful occupation. The Veteran's claims file was reviewed in its entirety and a telephonic vocational interview of the Veteran was conducted by a Vocational Expert. The Vocational Expert found that the Veteran required retraining for work that was sedentary or semi-sedentary dating back to 2003. Thus, the question was whether the Veteran was qualified and could obtain and retain substantially gainful employment in a sedentary position. The Vocational Expert opined the Veteran did not possess the transferable skills that would qualify him to obtain and retain sedentary level employment taking into account the Veteran's education (high school diploma) and work history. The Vocational Expert concluded the Veteran lacked the skills necessary to obtain sedentary work. The opinion was supported by a Vocational Rehabilitation assessment that the Veteran had limited skills and a history of remedial work and did not possess marketable skills and would need a longer-term training program. It was also noted that the December 2009 Vocational Rehabilitation finding showed the Veteran had difficulties on a daily basis with his service connected disability, which limited his activities daily and pursuing a Vocational Rehabilitation goal. Therefore, it was determined that when taking the continuity of the Veteran's VA claim record in conjunction with the Veteran's self-reported description of limitation, the evidence was strong and supported a consistent and progressing level of impairment that impacted to his capacity to retain work. The Vocational Expert concluded it was at least as likely as not that the combination of the Veteran's service-connected right ankle sprain with associated pes planus and osteoarthritis of the right hip and left hip, and hypertension prevented him from securing and following a substantially gainful occupation since at least March 2005 and potentially as far back as 2003. The Veteran underwent a right total hip arthroplasty in March 2013. Evidence weighing against the claim includes a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from Building Services Group. This shows the Veteran had no record of a disability and was a no show for three consecutive days, which was considered a voluntary quit. The June 2006 VA examiner found that the Veteran's hypertension and right ankle disability would not impair employment. As noted above, the Veteran's foot condition would require him to limit his walking, treading and climbing stairs, as well as precluding standing for long periods of time; however, the examiner found the Veteran was able to sit and he could reach. The Veteran's hip condition would limit his bending, crawling, kneeling, stooping, working on cluttered floors, and his ability to reply quickly to emergency situations; however, he would be able to work with others. The examiner also found that the Veteran would be able to do repetitive work that did not require any heavy lifting or carrying. Finally, the examiner concluded that none of the Veteran's disabilities or medications would impose any cognitive limitations. The June 2010 VA examiner found the Veteran's right ankle normal and opined the ankle condition would not limit his ability to undergo any form of labor. Severe bilateral osteoarthritis of the hips was determined to limit light and heavy physical labor due to its severity and the limitations posed on standing and walking; however, the condition would not limit or preclude sedentary physical labor. His bilateral pes planus could limit light and heavy physical labor, but sedentary labor would be not be limited or precluded. The examiner found that hypertension would not preclude any form of labor. There was no objective evidence of hemorrhoids or residual thereof, and thus, the condition would not limit any form of labor. The September 2012 VA examiner opined severe degenerative osteoarthritis of the right hip and status post arthroplasty of the left hip would not limit or impact his ability to work. The examiner indicated the Veteran was six months post total left hip replacement and he was doing well. The Board has considered these VA examination findings but affords them less probative weight than the findings contained within the Social Security Administration and Vocational Rehabilitation records, as well as the January 2013 Vocational Expert opinion. First, the VA examiners did not have the benefit of the review of the Veteran's Vocational Rehabilitation file. They also did not have the benefit of review of the complete records from Social Security Administration. Second, the VA examiners while some finding that he was still able to perform sedentary employment, made no mention of the effects of the Veteran's limited ability to sit for extended periods of time on employability. They also do not take into account the types of sedentary employment that would be available to him given his educational background, limited training and lack of marketable skills. The Board notes that the Court has held that the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed. Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008). Here, however, while it appears that the VA examiners reviewed the Veteran's VA outpatient treatment records; there is no indication that they reviewed the complete Social Security Administration determination records or the Vocational Rehabilitation reports and findings. More significantly, the VA examination opinions regarding unemployability did not take into account the combined effect of his service-connected disabilities on his ability to obtain or maintain employment. "[T]he plain language of the regulation does not require the [appellant] to show 100 percent unemployability in order to prove that he cannot 'follow substantially gainful occupation.'" Roberson v. Principi, 251 F.3d 1378 (Fed.Cir.2001). 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). Clearly, the service-connected disabilities preclude physical types of employment. It is also evident that even sedentary employment would be precluded given the statements of the Veteran and the findings of the Vocational Expert. The Vocational Rehabilitation reports and the January 2013 Vocational expert, in particular, considered how all the service-connected disabilities impacted the Veteran's ability to maintain employment. As such, the opinions of the Vocational Rehabilitation counselors and the Vocational expert are afforded more probative weight. Accordingly, after resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for a TDIU rating have been met. ORDER Entitlement to TDIU is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs