Citation Nr: 1329360 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-34 976 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of service-connected disabilities for the period from December 15, 2009 to July 30, 2013. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to July 2001 and from November 2002 to August 2006. This matter comes to the Board of Veterans' Appeals (hereinafter Board) following an appeal of an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was previously before the Board and remanded to the RO for evidentiary development in September 2011 in order to afford the Veteran an opportunity to testify at a hearing before the Board. Accordingly, on January 24, 2012, the Veteran appeared at the Waco RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. In March 2012, the Board again remanded the case for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in December 2012. In a February 2013 decision/remand, the Board granted an increased rating to 60 percent for residuals of traumatic injury, lumbar spine, status post laminectomy, effective December 15, 2009; it otherwise remanded the issue of entitlement to a TDIU. In a March 2013 rating decision, the RO increased the evaluation for residuals of traumatic injury, lumbar spine, status post laminectomy from 10 percent to 20 percent, effective August 2, 2006, and to 60 percent effective December 15, 2009. Subsequently, in an August 2013 rating decision, the RO granted service connection for radiculopathy of the right lower extremity with an evaluation of 40 percent, effective July 24, 2013, and service connection for radiculopathy of the left lower extremity with an evaluation of 40 percent, effective July 24, 2013; and, the RO increased the rating for service- connected post-traumatic stress disorder (PTSD) from 30 percent to 50 percent, effective July 30, 2013. The RO assigned a 100 percent permanent and total evaluation, effective July 30, 2013. Based on this grant, the claim of entitlement to a TDIU is moot from July 30, 2013, as a TDIU award would not result in a higher benefit to the Veteran. Although an increased rating has been granted from July 30, 2013, the issue remains in appellate status for the period prior to July 30, 2013. AB v. Brown, 6 Vet. App. 35 (1993). The Board finds that the agency of original jurisdiction substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Prior to July 30, 2013, service connection was in effect for residuals of traumatic injury, lumbar spine, status post laminectomy, evaluated as 60 percent disabling; radiculopathy of the right lower extremity, evaluated as 40 percent disabling; radiculopathy of the left lower extremity, evaluated as 40 percent disabling; PTSD, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; hearing loss, right ear, assigned a noncompensable disability; the Veteran's combined disability evaluation was 90 percent effective from July 24, 2013 (and 80 percent disabling from December 15, 2009). 2. Resolving all doubt in the Veteran's favor, the evidence of record reflects that he was unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities on December 15, 2009. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for assignment of a TDIU for the period from December 15, 2009 through July 30, 2013, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.3.340, 4.3, 4.7, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. 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) (2013). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to TDIU. The Veteran contends that he is not able to maintain his past employment due to the severity of his service connected disabilities, particularly his lumbar spine disability. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). It is the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, therefore, must evaluate whether there are circumstances in a 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's current service connected disabilities include: traumatic injury, lumbar spine, status post laminectomy, currently rated as 60 percent disabling; PTSD, currently rated as 50 percent disabling; radiculopathy of the right lower extremity, currently rated as 40 percent disabling; radiculopathy of the left lower extremity, currently rated as 40 percent disabling; tinnitus, evaluated as 10 percent disabling; and hearing loss, right ear, assigned a noncompensable disability. His combined rating is 90 percent prior to July 30, 2013. As of July 30, 2013, the Veteran was assigned a combined rating of 100 percent. In an Application for Increased Compensation Based Upon Unemployability (VA Form 21-8940), received in May 2009, the Veteran wrote that he was not able to work due to his service connected back disability. He stated that his disability prevented him from getting a position in the field in which he was trained; he reported being a trained motorcycle mechanic. He had obtained a high school education and had no further education except for his training as a motorcycle mechanic. Following a VA examination in December 2009, the Veteran was diagnosed with traumatic injury, lumbar spine, status post laminectomy. The examiner stated that the Veteran was able to function in a normal occupational environment based on his service-connected lumbar spine with the following limitations: no lifting over 25 lbs.; no climbing ladders, operating a forklift, or machinery; no repetitive back bending task, no more than 6 times per hour; no prolonged standing or walking, no more than 15 minutes total of combined standing or walking per hour; and prolonged keyboard work, no more than 30 minutes per hour. On the occasion of a VA examination for evaluation of PTSD, in January 2010, it was noted that the Veteran continued to experience back problems; he stated that these have made it difficult for him to get a job. It was noted that psychiatric symptoms have not changed significantly since his last examination. Following a mental status examination, the examiner reported a diagnosis of anxiety disorder NOS; he assigned a global assessment of functioning score of 60. The examiner stated that there is occasional decrease in work efficiency or there are intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but generally satisfactory functioning. At his personal hearing in January 2012, the Veteran reported that his low back disorder has prevented him from maintaining gainful employment. The Veteran indicated that he almost has no range of motion in his spine; he stated that he is very limited in his daily tasks. The Veteran testified that he has changed jobs multiple times since leaving the military; he stated that he has struggled to find work as a result of his disabilities. The Veteran indicated that while he has found a job, he experiences regular incapacitating episodes which cause him to lose many days from work; he stated that he is almost bedridden as a result of his back disorder. During a VA examination in May 2012, the Veteran indicated that he experienced daily back pain, stiffness and radicular pain down both posterior legs to his calves with intermittent numbness and tingling in the same area. It was noted that the Veteran had been working 40 hours a week at the Texas State Veteran's home, but he missed work frequently. The Veteran reported flare-ups every 1 to 2 weeks in which his pain is a 10 on a scale from 1 to 10; it was noted that flare-ups last 5 to 7 days which causes him to miss work, during which time he stays in bed, takes his medication and applies heat and ice. Following evaluation of the spine, the examiner opined that the Veteran was unable to perform work duties that required back bending, heavy lifting and carrying, prolonged sitting, standing and walking. Following a review of the Veteran's claims folder and electronic records, in June 2013, a VA audiologist stated that the Veteran's hearing loss should not significantly affect vocational potential, limit participation in most work activities, or render him unable to secure and maintain substantially gainful employment. The audiologist also stated that the aggravation of tinnitus symptoms is known to be reduced when an individual is occupied with a task as would be expected in most occupation. Therefore, tinnitus should not preclude employment. On July 24, 2013, a VA examiner reviewed the Veteran's claims folder and provided an addendum to a VA general examination conducted in March 2013. The examiner stated that the Veteran is not employable in any manual labor occupation due to his spinal degenerative joint disease, sciatica and continued pain post-operatively. The examiner stated that the Veteran is intelligent and educable; thus, with improved pain control and therapy to improve mobility, he would be employable in a sedentary field that allow for breaks two or more times/hour and that did not require prolonged standing/walking, crouching/stooping/squatting or heavy lifting. He may benefit from vocational rehabilitation. The VA examiner stated that he was unable to comment upon the Veteran's psychiatric diagnoses and any effect that they may have on his employability. Following a mental status examination in July 2013, the examiner stated that the PTSD symptoms described by the Veteran causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. However, the examiner stated that the Veteran's PTSD does not prevent him from working. He stated that the Veteran cannot be considered to be unable to secure or follow substantially gainful employment consistent with his education and occupational experience regarding his diagnosis of PTSD. The examiner observed that, since his last examination, the Veteran's PTSD symptoms had remained stable. As noted above, the Veteran was awarded a combined 100 percent rating in an August 2013 rating decision, effective July 30, 2013. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). Further consideration of TDIU for the period beginning on July 30, 2013 is therefore not warranted. Id. The Veteran asserts that his service-connected disabilities, particularly his back disorder prevented him from maintaining employment. The Veteran testified during the January 2012 hearing that he had constant back pain and he missed a lot of days from work as a result of his back disorder. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's testimony to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board finds the evidence is at least in equipoise. It is noted that, prior to July 30, 2013, the Veteran has a combined disability rating of 80 percent and has severe disabilities involving his back and legs. Although the VA examiner in July 2013 opined that the Veteran should be able to complete sedentary work with improved pain control and therapy, the Board notes that the evidence of record indicates that the Veteran is unable to perform duties that required back bending, heavy lifting and carrying, prolonged sitting, standing and walking. Moreover, while the May 2012 examination noted that the Veteran was working, it was also reported that he missed work frequently; and, the examiner noted that the Veteran experienced frequent flare-ups lasting 5 to 7 days which causes him to miss work, during which time he stays in bed, takes his medication and applies heat and ice. Following evaluation of the spine, the examiner opined that the Veteran was unable to perform work duties that required back bending, heavy lifting and carrying, prolonged sitting, standing and walking. Ever since he was discharged from service, the Veteran has worked as a mechanic, a job requiring physical work; the record does not reflect that he had training for any other types of employment. Considering all evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran was precluded from working due to his service- connected disabilities during the period from December 15, 2009 to July 30, 2013. Therefore, considering the severity of the Veteran's disabilities and resolving all doubt in favor of the Veteran, the Board finds the Veteran is entitled to TDIU during the period from December 15, 2009 to July 30, 2013. In light of this evidence and resolving reasonable doubt in favor of the Veteran, the Board concludes that his service- connected disabilities prevented him from securing and following substantially gainful employment consistent with his education and occupational experience during the period from December 15, 2009 to July 30, 2013. Entitlement to a TDIU is, therefore, granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU is allowed from December 15, 2009 to July 30, 2013, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs