Citation Nr: 1331087 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 06-18 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) due to service-connected cervical and lumbar spine disabilities prior to August 3, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2008, the Veteran withdrew his request for a Travel Board hearing. See 38 C.F.R. § 20.704(e) (2012). In June 2010, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C. for further evidentiary development. Thereafter, in a November 2011 rating decision, the AMC increased the rating for the Veteran's service-connected lumbar spine disorder to 60 percent, effective August 3, 2011. A March 2012 rating decision by the AMC granted entitlement to TDIU effective August 3, 2011. The Board remanded the TDIU issue on appeal again in November 2012. In a November 2012 rating decision, the AMC awarded increased disability ratings of 40 percent for the lumbar spine and 20 percent for the cervical spine, both effective April 1, 2004. In November 2012, the Board referred the issues of entitlement to service connection for depression and migraines as secondary to his service connected spine disorder and entitlement to special monthly compensation for schedular housebound. It does not appear that a decision has been rendered on those issues. They are therefore again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's overall combined disability rating has been 80 percent since April 1, 2004. 2. The Veteran last engaged in substantially gainful employment on September 28, 2004. 3. For the period from September 28, 2004, to August 3, 2011, the Veteran's service-connected cervical spine disability and lumbar spine disability with secondary radiculitis to the bilateral lower extremities were shown by competent medical evidence to render the Veteran unemployable. CONCLUSION OF LAW For the period from September 28, 2004, to August 3, 2011, the criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist with respect to his TDIU claim, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. II. TDIU The RO denied a claim for TDIU in an April 2006 rating decision that was not appealed. In a March 2012 rating decision, the RO granted entitlement to a TDIU effective August 3, 2011. However, subsequent to the April 2006 rating decision and prior to the grant of TDIU effective August 3, 2011, the evidence again raised the issue of entitlement to a TDIU. For example, the Veteran's treating doctor sent a letter in April 2010 letter describing the Veteran as being limited in activities of daily living and not being in a position to push, pull or lift heavy objects due to his lumbar spine condition. The doctor opined that he would not be able to return to any type of work. Accordingly, the Board previously determined that a claim of TDIU had been raised by the evidence during the course of the Veteran's appeal as to increased initial ratings for his lumbar and cervical spine disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of a claim). Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. The Veteran's employment history, educational and vocational attainment, as well as particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to August 3, 2011, and pursuant to a November 2012 rating decision, the Veteran's service-connected lumbar spine disability are rated as 40 percent disabling, his left and right lower extremity lumbar radiculopathy disabilities were each rated as 10 percent disabling, and his cervical spine disability was rated as 20 percent disabling, all effective April 1, 2004. The Veteran also has other service-connected disabilities and has had a total combined evaluation of 80 percent since April 1, 2004; thus, the percentages criteria for TDIU have been met since April 1, 2004. 38 C.F.R. § 4.16(a). The question is whether the Veteran's service-connected disabilities are of sufficient severity to produce unemployability for the period prior to August 3, 2011. See Hatlestad, 5 Vet. App. 524, 529; Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The record establishes that the Veteran worked as an electronics technician and performed duties maintaining airplanes on the flight line and accompanying flights throughout his twenty-year period of service from January 1984 to March 2004. Post-service, the Veteran was self-employed as a carpenter from April 2004 to September 2004. The Veteran became disabled from work on September 28, 2004, as determined by the Social Security Administration in March 2011 based on earning records. Post-service private and VA treatment records show that since his separation from service, the Veteran has required extensive and ongoing treatment for chronic low back pain relating to a herniated disc at L4-5 with associated radiculitis to the bilateral lower extremities. He required hospitalization due to his low back disability in September 2004, and as of July 2007, used a cane to ambulate due to his low back disability. He has also required treatment for cervical spine problems, to include pain management and radiofrequency ablation. Regarding functional limitations, in March 2005, the Veteran reported back pain that was worse with standing, driving, lifting, bending, walking, and twisting. He reported that he was working as a carpenter but was unable to continue due to severe pain. Private records in May 2005 note restrictions in terms of lifting, pushing, pulling, and driving long distances due to the low back disability. Similarly, a February 2006 QTC examiner found that the radiculitis of the bilateral lower extremities impaired the Veteran's ability to bend and pick up objects. At that time, the Veteran also reported impairment in standing, bending, sitting, laying down, and walking due to extreme pain in his bilateral lower extremities. In June 2006, the Veteran's pain physician noted that the Veteran should avoid bending and lifting more than 10 pounds one time a day. Significantly, he also found that sitting for prolonged periods is contraindicated, and that the Veteran would have to get up and move around and even lie down at unpredictable intervals throughout day to relieve pain related to disc herniation at L4-5. Thereafter, in October 2006, November 2007, and August 2008, the Veteran was noted to do little to no activity at home. He was further noted to be disabled or not working due to his back disabilities. The record contains multiple opinions from the Veteran's private physicians supporting that he is disabled due to his back and neck disabilities. For instance, in an August 2005 statement, the Veteran's private pain management physician noted treatment of the Veteran for chronic intractable low back pain related to a central radial tear at L4-5 with broad based disc bulge. He opined that functionally, the Veteran was not able to do any meaningful activity. Similarly, in a September 2005 statement, another private treating physician recounted the Veteran's prior hospitalizations for his low back disability and treatment for his back disability with an orthopedist and pain management specialist. He noted fairly significant functional limitation and ongoing pain as a result of the Veteran's spinal disability. He opined that due to nature of the Veteran's ongoing back pain, functional limitations, and chronic pain syndrome, the Veteran is unable to do any meaningful work. More recently, the pain management physician submitted an April 2010 statement noting that the Veteran was not a good candidate for lumbar surgery and will require narcotics or opioid pain medication for rest of his life. He further noted that more advanced interventions including surgical implantation of pain pump may be required, and that the Veteran "is not in a position to perform any meaningful employment on a regular basis." The foregoing opinions are consistent with a March 2011 determination by the Social Security Administration, which found that the Veteran had not engaged in substantially gainful activity since September 28, 2004, in significant part due to his spinal disabilities. That determination noted that despite various treatments, including spinal injections, pain management, and physical therapy, the Veteran continued to have reduced range of motion, tenderness, and chronic pain. Also consistent with other evidence of record is an August 2011 VA opinion that the Veteran is unlikely going to be able to perform any sedentary or physically active labor due to his low back and cervical spine disabilities. The VA opinion also noted that the Veteran would be unable to concentrate mentally due to pain medications. That opinion was based on a review of the claims file and physical examination of the Veteran, and is therefore accorded significant probative value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Moreover, that VA examiner's opinion is entirely consistent with the opinions of the private physician's dating as early as August 2005, supporting that the Veteran is unable to perform substantially gainful employment due to his low back disability with associated radiculitis to the lower extremities, and his cervical spine disability. In this regard, while the August 2011 VA opinion is phrased in terms of future functioning, the Board finds it significant that it was based upon medical evidence documenting the Veteran's functioning for the period prior to August 2011. Significantly, there is no contrary opinion of record. Given his prior work experience, the above-cited private opinions, the SSA findings, the Veteran's statements, and the August 2011 VA opinion, and resolving any remaining doubt in favor of the Veteran, the Board finds that for the period from September 28, 2004 to August 3, 2011, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected low back disability with associated lower extremity radiculitis, and cervical spine disability. See 38 U.S.C.A. § 5107(b) (West 2002). The Board finds that September 28, 2004 is the earliest possible effective date for the grant of a TDIU as that is the date that it is factually ascertainable the Veteran was unemployable due to service-connected disabilities. 38 C.F.R. § 3.400(o)(1)(2). Entitlement to a TDIU for the period from September 28, 2004 to August 3, 2011, is therefore granted. In reaching this decision the Board has considered and applied the benefit of the doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to TDIU is granted for the period from September 28, 2004 to August 3, 2011, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs