Citation Nr: 1328056 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 07-29 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1975, and from June 1983 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and February 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 2011 and October 2012, the Board remanded this case. The issue of entitlement to separate ratings for complications of diabetes mellitus including hypertension and urinary frequency as well as consideration of special monthly compensation for loss of use of a creative organ due to erectile dysfunction, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and these issues are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran meets the schedular criteria for a TDIU and the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The Veteran is individually unemployable by reason of his service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There was a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In June 2005, a claim for a TDIU was received from the Veteran. At that time, he reported that he was last employed in January 2005 as a job coach. A VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, was received in October 2005. The Veteran's employer indicated that the Veteran was terminated from his employment due to falsification of a document. In November 2005, the Veteran was examined by VA, but no opinion was provided regarding his employability. Thereafter, a December 2005 rating decision denied entitlement to a TDIU based primarily on the evidence submitted by the Veteran's employer. At that time, the Veteran was service-connected for degenerative joint disease of the right knee, rated as 30 percent disability; residuals of a left knee injury with degenerative joint disease, rated as 20 percent disabling; right knee instability, rated as 10 percent disability; left knee instability, rated as 10 percent disabling; right shoulder disability, rated as 10 percent disabling; hiatal hernia with gastroesophageal reflux disease (GERD) and duodenitis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; defective hearing, rated as 0 percent disabling; and hemorrhoids, rated as 0 percent disabling. The combined rating with a bilateral factor added was 70 percent. The Veteran met the schedular criteria per 38 C.F.R. § 4.16(a) because 38 C.F.R. § 4.16 provides that for the purpose of one 40 percent rating, disabilities of one or both lower extremities including the bilateral factor are considered as one disability. The ratings for the knees (four disabilities in total) as combined under 38 C.F.R. § 4.25 totaled 40 percent, and the remaining disabilities combined to total 70 percent. However, the Veteran was still required to establish unemployability due to these disabilities. In a November 2007 statement, the Veteran and his representative asserted he had bilateral knee pain and disabilities. In addition, at that time, the Veteran was claiming service connection for diabetes mellitus with associated complications. Thereafter, the Veteran reported that he needed a knee replacement. In January 2008, the Veteran was again examined by VA. At that time, the Veteran reported that he last worked in 2005, but was unable to do any physical job due to his disabilities, which also affected his activities of daily living and made it difficult for him to work. The examiner did not provide any opinion regarding employability. In a February 2008 rating decision, entitlement to a TDIU continued to be denied based primarily on a finding that the evidence did not show that the Veteran was precluded from sedentary employment. Subsequently, evidence was received from the Social Security Administration (SSA) which indicated that the SSA had determined that the Veteran was entitled to benefits and that he became disabled in 2005, the same time the Veteran reported unemployability to VA. An SSA evaluation reported the Veteran's various service-connected disabilities resulted in his disabled status, including diabetes mellitus, which the Board determined to be service-connected in a March 2011 decision. In an April 2011 rating decision, the Board's decision was implemented and a 40 percent rating was assigned effective June 2005 (encompassing the entire appeal period). VA is a separate entity from SSA and has its own regulations on unemployability due to disability. Nonetheless, the SSA decision is relevant to the TDIU issue on appeal. In addition, during the appeal period, the Veteran underwent a total knee replacement for his left knee. Per a July 2010 rating decision, a 100 percent rating was assigned from May 18, 2010 to July 31, 2011. As of August 1, 2011, a 30 percent rating was assigned. Thus, the Veteran's combined disability rating was elevated as follows: 80 percent from June 2005; 100 percent from May 2010; and 80 percent from August 2011. For the period that a 100 percent rating was assigned for the left knee disability, i.e., May 18, 2010 to July 31, 2011, the Veteran cannot also receive a TDIU solely on the basis of the left knee disability. Nonetheless, the Veteran can receive a TDIU during that time period for his other service-connected disabilities if the medical evidence demonstrates that he has been rendered unemployable as a result of the service-connected disabilities other than the left knee disability, with due considerations to the provisions outlined in Bradley v. Peake, 22 Vet. App. 280 (2008). See 75 Fed. Reg. 11230 (March 10, 2010) ("The logic of Bradley suggests that if a Veteran has a schedular total rating for a particular disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under 114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100-percent disability rating."). In the March 2011 Board decision, the Board remanded the TDIU issue, finding that there was no opinion regarding employability in the record, to obtain such an opinion, and for the disabling effects of the Veteran's diabetes mellitus to be addressed. In April 2011, the Veteran was afforded a VA examination which addressed all of his service-connected disabilities. With regard to employability, the examiner opined that the Veteran's hemorrhoids were inactive and did not affect employment; his GERD was controlled and did not affect employment; that the Veteran's diabetes mellitus and its co-morbidities (hypertension, kidney dysfunction, and erectile dysfunction) had a mild effect on employment; and that the Veteran's knee disabilities had a severe impact on the Veteran's ability to secure and maintain gainful employment. The examiner discussed the Veteran's physical limitations due to the knee disabilities as well as his pain level. In pertinent part, it was noted that the Veteran could only sit for a short period of time prior to pain and stiffness. In October 2012, the Board remanded this case again as the complications of the Veteran's diabetes mellitus were not adequately addressed by the RO. In December 2012, the Veteran was examined and it was confirmed that his hypertension, kidney dysfunction, and erectile dysfunction were complications of his diabetes mellitus; however, the RO never separately rated these complications, despite indications that the Veteran's hypertension and urinary frequency are compensably disabling. In addition, special monthly compensation was not considered. Since the TDIU matter can be resolved without determining the exact ratings for these complications as the schedular criteria has already been met for the entire appeal period, the Board has referred this matter in the introductory portion of this decision. Nonetheless, the Board duly notes that the Veteran is on continuous medication for the hypertension and has reported urinary frequency during the daytime of occurring at less than a one hour interval. Also, no further opinion regarding employment was provided by the examiner in conjunction with the 2012 examination. Moreover, while there are voluminous VA treatment records, none of them address employability. Therefore, in sum, there is only one opinion addressing employability which consists of the April 2011 VA opinion. The essential issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, was capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is unemployed and has been for years. His last employer confirmed that he was terminated due to circumstances apart from his disabilities and he was terminated about 5 months prior to his application for a TDIU. Thus, despite the circumstances surrounding the January 2005 termination, this does not mean that he did not become unemployable by the time he submitted his application, as he implicitly asserts. There is only one medical opinion regarding employability. The April 2011 opinion sufficiently shows that the Veteran cannot maintain employment primarily due to his knee disabilities. Specifically it was determined that the knee disabilities had a severe impact on his employability, while his hemorrhoids were inactive and GERD controlled and did not affect employment. Resolving all doubt in the Veteran's favor, he is shown to have a myriad of service-connected disabilities, some of which render him unable to secure or follow a substantially gainful occupation in either a physically demanding or a sedentary field, since sedentary employment inherently contemplates being able to sit, which he cannot do for any meaningful length of time. The examiner did not state when this unemployable status commenced and the Board recognizes that this claim has been remanded and this issue deferred multiple times to obtain an opinion over a significant length of time. With consideration given to the Social Security Administration opinion, the consistent complaints of the Veteran, and as the criteria under 38 C.F.R. § 4.16(a) have been met during the entire appeal period, the Board finds that a TDIU is warranted for the entire appeal period. However, given that the Veteran has been found to be unemployable primarily due to his knee disabilities, he cannot receive a TDIU for the period of time that he is in receipt of a 100 percent schedular rating for his left knee replacement. The Board has resolved all reasonable doubt in this case in the Veteran's favor. ORDER TDIU is granted for the entire appeal period except from May 18, 2010 to July 31, 2011 when a total rating was in place, subject to the law and regulations governing the payment of monetary benefits ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs