Citation Nr: 1332553 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-27 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2013, the Veteran testified before the undersigned at a Travel Board hearing at the RO. The issue of entitlement to heart disability as secondary to service-connected hypertension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is 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 November 2006, a claim for a TDIU was received. The Veteran claims that while his nonservice-connected cervical spine disability played a role in his retirement and continued unemployability, his many service-connected orthopedic disabilities alone also render him unemployable. He was last employed as an electronic technician, a job which he states was sedentary. However, he asserts that he could no longer perform even sedentary work and left employment. The Veteran is service-connected for left knee disability (status post replacement), rated as 30 percent disabling; left ankle disability, rated as 20 percent prior to February 2008, and 30 percent from February 2008; lumbar spine disability, rated as 20 percent disabling from July 2007; right knee disability, rated as 10 percent prior to February 2008, and 20 percent from February 2008; hypertension, rated as 10 percent disabling; left hip disability, rated as 10 percent disabling; right knee disability, rated as 10 percent disabling; and right ankle disability, rated as 10 percent disabling. The combined rating from September 2005 was 70 percent; from July 2007, 80 percent; and from December 2010, 90 percent. Thus, the Veteran has met the schedular criteria during the entire appeal period. In a June 2007 letter, the Veteran's private physician, J.D.G., M.D., indicated that the Veteran had low back disability which was etiologically connected to his knee disability. In November 2007, the Veteran was afforded a VA spine examination which confirmed the opinion of the private provider, but which did not offer an opinion regarding employability. In February 2008, the Veteran's VA Form 21-8940, was received in which he indicated that he was last employed full time in 1991 as a hearing aid technician. Thereafter, additional medical evidence was received from the Social Security Administration, which granted the Veteran disability benefits. The records reflected treatment for his service-connected disabilities as well as nonservice-connected cervical spine and shoulder disabilities. In pertinent part, a July 1997 notification indicated that the Veteran's multitude of orthopedic problems, particularly his knee and neck, caused him to have problems doing heavy activities as well as standing, lifting, and bending. The examiner indicated that he was significantly disabled. A September 2007 report noted that although the Veteran had cervical spine disability, he had intact sensation and no motor deficits in his upper extremities. In addition, VA medical records were received which also reflected treatment for the Veteran's service-connected disabilities. In May 2008, the Veteran was afforded a VA examination which evaluated the Veteran's various orthopedic disabilities. The Veteran told the VA examiner that he was retired due to neck disability. The evaluation showed that the Veteran was unable to stand or walk for prolonged periods and had limitation of motion and pain of his affected service-connected joints, as well as other symptoms. The Veteran's activities of daily living were negatively affected by his disabilities from a mild degree to prevented activities. The Veteran was prevented from exercising and participating in sports. He was moderately impaired with regard to chores, shopping, and recreation. The examiner opined that the Veteran's service-connected disabilities did not prevent sedentary employment and noted that the Veteran's cessation from work was due to neck disability (as reported by the Veteran). In March 2011, the Veteran was afforded another VA examination. It was noted that the Veteran was taking narcotic as well as over-the-counter medications. The narcotic medication was taken four times per day and was noted to be taken for the service-connected disabilities, presumably for pain relief. The Veteran also used a TENS unit. The Veteran's activities of daily living were again noted to be negatively affected. The Veteran reported that he retired due to a neck disability. Thereafter, the Veteran continued to receive treatment for complaints related to his service-connected disabilities as shown in VA records contained in VA's Virtual System. The Veteran testified at a Board hearing in April 2013. At that time, he related that both he and his physicians felt that with the levels of pain created from his service-connected joint disabilities and the medications he took for the severe pain, there was no way the Veteran could carry on any kind of employment. He explained that the medications made him sleepy and affected his judgment. The Veteran indicated that he left his last job in the early 1990's due to pain. He stated that he could not stand for long, but the pain also prevented sedentary employment. He indicated that although the VA examiner stated that his service-connected disabilities allowed for a sedentary type of employment, this was not true. The Veteran stated that when he received disability benefits from the Social Security Administration, overall his neck disability played a role, but did not on its own provide the basis for the benefits. In fact, he related that he was not currently treated for neck disability, but did self-treat himself at home with an overhead traction device. The Veteran emphasized that his other orthopedic disabilities also prevented him from sitting for extended periods, such as would be necessary for sedentary employment. Even though the Veteran meets the schedular criteria for a TDIU, he is still required to establish unemployability due to these disabilities. 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. The Veteran has told VA examiners that his neck disability precipitated his retirement. He was credible in this report. However, he retired in the early 1990's and the present question before the Board is whether his service-connected disabilities without regard to nonservice-connected disabilities prevent employment. In other words, while his neck disability may have resulted in his retirement and which plays a role in his continued unemployability, his service-connected disabilities on their own may also prevent employment. In fact, in reviewing the records from the Social Security Administration, it is clear that his knee disability was also a primary basis for that award. Further, in viewing the medical evidence, it is clear that his orthopedic disabilities cause pain and limitation of motion in all affected joints and prevent any strenuous physical activities, as well as periods of prolonged standing and walking. The Veteran testified that he is also unable to sit for extended periods. In considering that the Veteran take narcotic pain medication four times a day for his service-connected disabilities, the Board finds that this contention that he has made to also be credible. Resolving all doubt in the Veteran's favor, he is shown to have a myriad of service-connected disabilities which cumulatively 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. 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. ORDER A TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs