Citation Nr: 1326029 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-36 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU). ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from April 1955 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran's appeal was subsequently transferred to the Houston, Texas, RO. This issue on appeal was remanded for further development in February 2013 for further development, which has been accomplished. The case has now been returned to the Board for appellate review. The Veteran's Virtual VA electronic record has also been reviewed in conjunction with the appeal. However, the documents included in the Veteran's Virtual VA record are either duplicative of evidence already in the claims file or not pertinent to the issue 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 1. The Veteran is service connected for degenerative changes of the lumbar spine, rated as 10 percent disabling prior to March 18, 2010 and 20 percent disabling, effective March 18, 2010, left leg radiculopathy, rated as 10 percent disabling, effective September 25, 2006, and right knee strain rated as noncompensable, for a total combined rating of 20 percent prior to March 18, 2010 and 30 percent as of March 18, 2010. 2. The Veteran filed a claim for a TDIU on September 25, 2006; throughout the course of the appeal, the Veteran has not met the schedular criteria for a TDIU. 3. Throughout the course of the appeal, the Veteran's service-connected degenerative changes of the lumbar spine and associated left leg radiculopathy have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities on an extraschedular basis have been met, effective September 25, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 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, 529 (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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of a total rating based on unemployability. When the veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). Further, it is the established policy of VA 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. Therefore, for those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), but are unemployable due to service connected disabilities, rating boards should submit such cases to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). The Veteran has asserted that he is unable to work due to his service-connected low back disability and associated radiculopathy of the left leg. In statements of record, the Veteran has consistently reported that due to his need to change posture every few minutes throughout the day, he was unable to perform his duties as a senior engineer and was medically laid off from his employment. The Veteran is service-connected for degenerative changes of the lumbar spine, rated as 10 percent disabling prior to March 18, 2010 and 20 percent disabling thereafter, left leg radiculopathy, rated as 10 percent disabling, effective September 25, 2006, and right knee strain rated as noncompensable. The Veteran's total combined rating was 20 percent prior to March 18, 2010 and 30 percent as of March 18, 2010. In turn, under the 38 C.F.R. § 4.16(a) criteria outlined above, he has not met the schedular criteria for a TDIU rating throughout the course of the appeal. In February 2013, the Board remanded the issue of entitlement to a TDIU for extraschedular consideration by the Director of Compensation and Pension Service. In a June 2013 determination, the Director determined that the Veteran was not unemployable due to his service-connected disorders. The Director found that the Veteran was able to retire due to age and longevity of employment and that there was no objective evidence showing an inability to obtain new employment. The Director also observed that advanced age was not a consideration in TDIU claims. It was also determined that a May 2011 VA opinion finding that the Veteran was unemployability was not supported by the physical findings and other medical evidence. The claims file shows that the Veteran was last employed full time as a scientist engineer in June 2006. Prior to leaving his job, a July 2005 private medical opinion indicated that the Veteran could not work more than 20 hours a week due to his chronic back pain and age. Records from his last employer showed that the Veteran was terminated in June 2006 for being medical unable to perform his work assignment. The Veteran was afforded a VA examination in October 2007 by a physician's assistant. It is unclear whether the claims file was reviewed. The Veteran reported that he was forced to retire because of his inability to work more than four hours at a time without having to lie down secondary to increased back and leg pain. The examiner observed that the Veteran was taking a very strong narcotic pain medication. Other than the back, there was really no limitation to employment in a sedentary type job. The examiner thought that the Veteran could be employed in a sedentary position if he could find that type of employment. The Veteran was afforded another VA examination in March 2010 with a medical doctor. The claims file was reviewed. At this examination, the examiner found that the Veteran was unable to do any physical work due to chronic back pain and limited range of motion in his spine. The examiner also noted the Veteran was not fit to do any sedentary work as his condition affected his attendance to work and the current medication affected his mental alertness and concentration. It was also noted the Veteran was legally blind which may impair any physical and sedentary work. The Veteran underwent another VA examination in March 2011 with the same examiner who performed the October 2007 VA examination. At this time, it appears that the claims file was reviewed. After examining the Veteran, the examiner noted that the Veteran was status post multiple surgeries of the lumbar spine and had limitations with walking or sitting. The examiner opined that the Veteran was disabled from any gainful employment. The Board now turns to whether the Veteran's service-connected disabilities result in impairment so severe that it is impossible for him to follow a substantially gainful occupation. Initially, the Board notes that there have not been any contentions or medical evidence indicating that the Veteran's service-connected right knee disability precludes employment. Thus, the primary question is whether the Veteran's low back disability and associated radiculopathy of the left leg renders him unable to maintain or sustain gainful employment. The Board has carefully considered the totality of the pertinent evidence in this case. In the instant case, the Board observes that evidence shows that the Veteran is legally blind, for which he is not service-connected, and this disorder may also be affecting his employability. A total rating based on individual unemployability is limited to consideration of the Veteran's service-connected disabilities. However, for purposes of determining entitlement to a total rating based on individual unemployability, it is not sufficient merely to deny a claim because a Veteran may be rendered employable due to a nonservice-connected disability. Rather, VA must disregard the degree of nonservice-connected disability and consider only whether the service-connected disabilities alone would render the veteran unemployable. Blackburn v. Brown, 4 Vet. App. 395, 398 (1993). In the present case, the Board must conclude that when only considering the Veteran's service-connected low back disability, the evidence of record shows that he is unable to secure or follow a substantially gainful occupation. The Veteran has reported consistently throughout the appeal period that his service-connected degenerative changes of the lumbar spine prevented him from securing employment after he retired from his last job as a senior engineer. He essentially has contended that he was forced to retire due to his service-connected degenerative changes of the lumbar spine. He also has reported that his service-connected degenerative changes of the lumbar spine interfered with his ability to perform his duties. Importantly, the competent medical evidence of record supports the Veteran's assertions regarding the impact of his service-connected degenerative changes of the lumbar spine on his employability. For instance, the March 2010 and May 2011 VA examiners clearly found that the Veteran was unable to perform physical or sedentary employment due to his back disability. The Board recognizes that the October 2007 VA examiner indicated that the Veteran could perform sedentary employment if he could find such employment. However, this same examiner subsequently changed his opinion in May 2011 finding that the Veteran was unable to be gainfully employed. Moreover, based on the Veteran's statements and his work background, it is unclear that he would have been able to find sedentary employment as described by the VA examiner in October 2007. Moreover, although the Director of Compensation and Pension indicated that the physical examination findings did not support the May 2011 VA examiner's conclusion that the Veteran was unemployable, the Board observes that the examiner made this determination after examining the Veteran, taking a thorough medical history, and reviewing the claims file. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Based on all of these findings, the examiner determined that the Veteran was unemployable due to his back disability. The Board also finds it significant that the Director's determination did not even address the March 2010 opinion, which also found that the Veteran was unable to perform physical or sedentary employment. Moreover, the Director's decision appears to primarily rely on medical evidence dated back in 2005 and 2006 that indicated that the Veteran could work 20 hours per week. However, this evidence was prior to the Veteran's current claim and did not seek to address the Veteran's employability during the applicable time period. The determination also indicated that the Veteran retired due to age. However, employment records clearly showed that while he may have been eligible for retirement based on age the Veteran was laid off for medical reasons. Accordingly, based on the analysis above, resolving all benefit of the doubt in the Veteran's favor, the Board must conclude the Veteran is unemployable due to his service-connected low back disability and associated radiculopathy and that entitlement to TDIU is warranted, effective September 25, 2006, the date of claim. 38 U.S.C.A. § 5107(b). Lastly, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the instant case, there is no need to undertake any review of compliance with the VCAA and implementing regulations since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted in this decision of the Board. [ORDER ON NEXT PAGE] ORDER A total evaluation based on individual unemployability due to service-connected disabilities is granted on an extraschedular basis, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs