Citation Nr: 1332812 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-32 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability (TDIU) prior to June 27, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to June 1979, and from May 1980 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2010, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims folder. In a December 2011 rating decision, the RO awarded the Veteran a total disability evaluation for major depressive disorder, effective June 27, 2011. The RO also awarded special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) from June 27, 2011. See Bradley v. Peake, 22 Vet. App. 280, 294 (2009) (the Court determined that a separate TDIU rating predicated on one disability when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation). As a total rating and SMC were in effect for this period, entitlement to TDIU during this period is rendered moot. In February 2013 this matter was last before the Board at which time it was remanded for further development. That development has been completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 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 Prior to June 27, 2011, the Veteran's service-connected disabilities consist of residuals of a muscle strain of the low back (evaluated as 40 percent disabling since March 27, 2007), impingement syndrome of the left shoulder with bone spur (evaluated as 20 percent disabling since March 20, 2006), residuals of sprains of the left ankle with bone spur (evaluated as 10 percent disabling from November 9, 2007, and 20 percent disabling from May 13, 2009), neck sprain (evaluated as 20 percent disabling since May 4, 2011), residuals of sprains of the right ankle and traumatic arthritis (evaluated as 10 percent disabling since November 25, 1993), painful scarring of the left shoulder from surgical repair associated with impingement syndrome of the left shoulder with bone spur (evaluated as 10 percent disabling since June 21, 2002), degenerative arthritis of the left knee, status post arthroscopy (evaluated as 10 percent disabling since November 25, 1993), bilateral tinnitus (evaluated as 10 percent disabling since March 31, 2006), retropatellar pain syndrome of the right knee (evaluated as 10 percent disabling since November 9, 2007), left ear hearing loss (evaluated as noncompensably disabling), and hemorrhoids (evaluated as noncompensably disabling). His combined rating is 70 percent from March 27, 2007, to November 8, 2007, and 80 percent from November 9, 2007, to June 27, 2011. 2. Prior to June 27, 2011, the Veteran's service-connected low back and left shoulder disabilities are of such severity as to render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating for compensation based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Laws and Regulations 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, his educational and vocational attainment, as well as his 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Facts and Analysis The Veteran seeks entitlement to a TDIU. The Veteran contends that he cannot secure or follow a substantially gainful occupation due to his service-connected disabilities, including the effects of pain medications taken for the same. Prior to June 27, 2011, the Veteran's service-connected disabilities consist of residuals of a muscle strain of the low back (evaluated as 40 percent disabling since March 27, 2007), impingement syndrome of the left shoulder with bone spur (evaluated as 20 percent disabling since March 20, 2006), residuals of sprains of the left ankle with bone spur (evaluated as 10 percent disabling from November 9, 2007, and 20 percent disabling from May 13, 2009), neck sprain (evaluated as 20 percent disabling since May 4, 2011), residuals of sprains of the right ankle and traumatic arthritis (evaluated as 10 percent disabling since November 25, 1993), painful scarring of the left shoulder from surgical repair associated with impingement syndrome of the left shoulder with bone spur (evaluated as 10 percent disabling since June 21, 2002), degenerative arthritis of the left knee, status post arthroscopy (evaluated as 10 percent disabling since November 25, 1993), bilateral tinnitus (evaluated as 10 percent disabling since March 31, 2006), retropatellar pain syndrome of the right knee (evaluated as 10 percent disabling since November 9, 2007), left ear hearing loss (evaluated as noncompensably disabling), and hemorrhoids (evaluated as noncompensably disabling). The Veteran's combined rating is 70 percent from March 27, 2007, to November 8, 2007, and 80 percent from November 9, 2007, to June 27, 2011. The Veteran's combined disability evaluation is 100 percent disabling, effective June 27, 2011, and he has had a combined disability evaluation of 70 percent disabling or higher with a single disability evaluated as 40 percent disabling since March 27, 2007, prior to June 27, 2011. Accordingly, the Veteran meets the threshold rating criteria for consideration for a TDIU rating under 38 C.F.R. § 4.16(a). It is noted that TDIU was previously denied in a November 2006 rating decision. The Veteran then filed an increased rating claim for his lumbar spine in March 2007 and asserted that he was unemployable in part due to his back in November 2007. While additional documents were associated with the record within one year of the November 2006 rating decision, there was no asserted disagreement with that decision nor was new and material evidence associated with the record within one year of the decision showing the Veteran was unable to obtain and/or maintain substantially gainful employment due to service-connected disabilities. See 38 C.F.R. § 3.156(b). Accordingly, the November 2006 rating decision is final. Because the Veteran meets the threshold rating criteria under 38 C.F.R. § 4.16(a), a determination needs to be made as to whether the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities, either standing alone or in the aggregate. In connection with his claim of entitlement to a TDIU the Veteran reported that he was a high school graduate with two years of college education. He related that he last worked in December 2005, was on medical leave from December 2005 to December 2006, and accepted a buyout in January 2007. The Veteran had work experience at an automotive company and a glass plant. Subsequently, the Veteran reported that he attempted to gain employment in security at Fort Campbell, with the State of Tennessee Highway Patrol, and with the United States Postal Service. The Veteran reports that he has been unable to obtain and retain work due to his physical limitations and his use of prescribed narcotics for chronic pain in his weight-bearing joints, especially his lower back, shoulders, knees, neck, and both ankles. See December 2007 and July 2011 statements. He reported that these service-connected disabilities contribute in some form or another. He asserts that these chronic, long-term health conditions have played havoc with his frame of mind and that not being able to obtain work has brought him down to a low that he has not experienced before. See July 2011 statement. In a letter from the Veteran's former employer, dated in February 2006, the Veteran was noted to have been placed on medical layoff effective August 2006. In a subsequent letter from the Veteran's former employer, the Veteran was noted to have been a full-time hourly employee from April 1996. The Veteran was placed on medical layoff from February 2006 until June 2006 when he was brought back to work for a special assignment. The Veteran was noted to have completed the assignment and returned to layoff status effective August 2006. See November 2006 letter. In a treatment note, dated in February 2007, the Veteran reported that he had not worked since 2005 and that he was having difficulty finding work. In a statement received in May 2007, the Veteran's spouse reported that the Veteran experienced chest pain to the point that it caused him to have to sit for a while. In May 2007 the Veteran was afforded a VA examination. After examination the Veteran was noted to be unemployed and to not be retired. The Veteran reported that the reason for his unemployment was his left shoulder. In May 2007 the Veteran was afforded a VA spine examination. After examination the Veteran was noted to be unemployed but not retired. The Veteran reported that his major reason for unemployment was his left shoulder. The examiner noted that the Veteran's degenerative disc disease had severe effects on the Veteran's ability to do chores, exercise, and participate in sports and recreation, had moderate effects on his ability to shop, travel, dress, toilet, and groom, and mild effects on the Veteran's ability to bathe, but no effect on the Veteran's ability to eat. In August 2007, in conjunction with an application for a job with the United States Post Office, the Veteran was noted to be diagnosed as having mild degenerative joint disease of the lumbar spine that was responding to conservative treatment. The Veteran was noted to not be able to perform repetitive bending or lift anything greater than 70 pounds. In January 2008 the Veteran was afforded a VA joints examination. After examination the Veteran was noted to be unemployed. The examiner noted that the Veteran's left shoulder disorder had a moderate effect on his ability to perform chores, shopping, exercise, sports, bathing, and dressing; a mild effect on his ability to perform recreation, feeding, toileting, and grooming; and no effect on his ability to travel. The examiner found that the Veteran's right ankle arthritis caused severe impairment with exercise and sports, moderate impairment with chores and shopping, mild impairment with recreation and traveling, and no impairment with feeding, bathing, dressing, toileting, and grooming. The Veteran's left knee arthritis was noted to cause severe impairment with exercise and sports, moderate impairment with chores, shopping, and recreation, mild impairment with traveling, and no impairment with feeding, bathing, dressing, toileting, and grooming. The Veteran's right knee was noted to cause severe impairment with exercise and sports, moderate impairment with chores and shopping, mild impairment with recreation and traveling, and no impairment with feeding, bathing, dressing, toileting, and grooming. In January 2008 the Veteran was afforded a VA spine examination. After examination the Veteran was noted to be unemployed and retired due to his shoulder injuries. The Veteran's back disorder was noted to cause severe impairment with exercise and sports, moderate impairment with chores, shopping, recreation, and traveling, mild impairment with bathing and dressing, and no impairment with feeding, toileting, and grooming. In a July 2008 treatment note, the Veteran complained of bilateral shoulder pain, worse in the left shoulder. He reported that he no longer worked. In an August 2008 note, the Veteran was noted to have a history of chronic low back pain secondary to lumbar spinal stenosis with left L5-S1 radiculopathy. He also had a history of chronic bilateral shoulder pains with permanent restrictions due to these bilateral shoulder disorders. He was reported to not be able to lift anything over 50 pounds, to be unable to perform repetitive work with the right or left upper extremities, and to not be able to lift higher than the chest with the upper extremities. In August 2008, the Veteran was denied Vocational Rehabilitation Benefits as he was found not to have a serious employment handicap. The rehabilitation counselor found that the Veteran had functional limitations stemming from his service-connected disabilities. The Veteran reported that he accepted a buyout from his company but explained that those benefits and salary ended in November 2007. He reported that he had been looking for employment but admitted that he applied solely for higher paying manual labor factory positions, for which he is turned down due to his physical conditions. He reported that he has not sought alternative, suitable employment. Substitute teaching was noted as a possible form of work, but did not interest the Veteran. In February 2009, the Veteran reported that he last worked in 2005 and reported that he could no longer adequately perform due to mounting physical limitations and pain. In a decision dated in April 2009, SSA determined that the Veteran was not disabled as defined by the Social Security Act. The Veteran had the following severe impairments: history of left shoulder surgeries, history of arthroscopic surgery to the left knee, and mild disc bulging of the lumbar spine. In a letter dated in June 2009, the Veteran's physician at VA noted the Veteran's chief complaints included chronic pain in his neck, low back, and bilateral shoulders. He reported that the Veteran had difficulty with some daily activities, some physical tasks were more strenuous for him, and that he was unable to lift, reach out, open heavy doors, or move any heavy equipment. The physician stated that "[i]t would be difficult for [the Veteran] to obtain any work which required prolonged sitting, standing, stooping, bending, crouching, or lifting heavy objects." The offered that it was their "medical opinion that he would need frequent rest breaks during employment to help alleviate pain." However, the Board notes that the physician listed non-service-connected disabilities among the Veteran's disabilities, such as hypertension, right shoulder disorder, and gastroesophageal reflux disease. In July 2009 the Veteran was afforded a VA joints examination. After examination the Veteran was noted to be unemployed. The Veteran attributed his unemployment to his pain medication, shoulder disorders, and back disorder. The examiner noted that the Veteran's left ankle sprain with bone spurs prevented the Veteran from exercise and sports, severely impaired chores, shopping, recreation, and traveling, moderately impaired bathing, dressing, and driving, mildly impaired toileting and grooming, and had no impact on feeding. However, the examiner did not render an opinion regarding whether the Veteran's service-connected disabilities rendered him unemployable. A March 2010 physical therapy evaluation and plan of care note documents that the Veteran reported difficulty and/or inability with the following functional activities: bathing, bed mobility, dressing, driving related tasks, general cleaning, grooming, lifting, making the bed, meal preparation, pushing/pulling, putting on a belt, putting on a jacket/coat, putting on pants, tucking in a shirt, upper body dressing, as well as reaching overhead, behind the back, out to the side, across the body, behind the head, into pockets, and into cabinets. The note further documented that the Veteran was limited in performing functional activities/activities of daily living due to limited active range of motion, pain, and weakness. In a statement dated in March 2010 the Veteran was noted to be restricted from overhead use of the arm and lifting greater than 20 pounds. In a statement dated in September 2010, a private chiropractor evaluated and treated the Veteran for chronic low back and neck pain. He opined that it would be difficult for him to do most jobs without much pain, based on his assessment. During his September 2010 Board hearing, the Veteran testified that he primarily engaged in manufacturing and production work which required that he be able to stand and move heavy objects as well as bend or stoop. He also had limited movement of the shoulder. As a result, he could no longer do that type of work. Although he attempted to obtain other employment he had lost out on jobs due to the medicines prescribed by VA and not meeting the requirements for positions. He also testified that while he was on medical leave, he was offered a buyout, which he accepted. He testified that he experienced side effects from his medications such as feeling drowsy and not fully aware of what was going on around him. Statements dated in June 2011 from the Veteran's spouse and daughter report that he had been putting in applications and going on job interviews almost monthly only to be turned down because of his physical limitations or because of the side effects of his medications. The Veteran's spouse also reported that the Veteran had not been able to hold down any type of employment for several years. In VA records dating from November 2010 to September 2011, the Veteran expressed his frustration with not working and reported that he had not been able to work since his injuries. He reported that he had been going on job interviews and applying for SSA disability, but was declined for each. In November 2010 the Veteran was afforded a VA general medical examination. During the examination the Veteran reported that his hearing had become progressively worse. He also reported that his tinnitus had remained stable since the onset in the late 1980s. The Veteran indicated that he began to have low back pain in the 1980s that had been worsening since that time. He reported having multiple surgeries on his left shoulder in 2000, 2002, and 2005. He indicated that the scars from the surgeries on his left shoulder were stable. He also indicated that his hemorrhoids were stable since the onset in 1993. He reported that he underwent left knee arthroscopy in 2006, but continued to have pain in the bilateral knees. He also reported that he had bilateral ankle pain. The examiner noted that the Veteran's usual occupation was as a glass maker and that he was not then employed by reason of medical/physical problems. He specified that the Veteran's shoulder condition was the reason for his unemployment. The diagnoses included sensorineural hearing loss, which the examiner found would affect the Veteran's usual occupation resulting in difficulty hearing in loud settings. The examiner also found the Veteran's diagnosis of tinnitus would affect his occupation and occupational activities by resulting in difficulty hearing in a group of people and decreased concentration and hearing difficulty. He was diagnosed with lumbar degenerative disc disease, which the examiner found would result in problems with lifting and carrying, weakness and fatigue, and pain with regards to the Veteran's occupational activities. The diagnoses of mild degenerative arthritis in the bilateral knees and bilateral ankle degenerative arthritis would affect the Veteran's occupational activities by resulting in decreased mobility and pain. The examiner diagnosed the Veteran as having left shoulder rotator cuff tear and impingement and found the effects on his occupational activities included problems with lifting and carrying, difficulty reaching, decreased strength, and upper extremity pain. The examiner also diagnosed the Veteran as having hemorrhoids and opined that this diagnosis would result in pain with prolonged sitting. The examiner opined that the Veteran was unable to obtain gainful employment in his prior profession as a glass maker due to his inability to lift/carry and use his left shoulder appropriately, secondary to his service-connected left shoulder rotator cuff tear. He also opined that the Veteran's other disabilities of lumbar degenerative disc disease, bilateral ankle arthritis, and mild bilateral knee arthritis prevented him from being able to perform manual labor, or any occupation requiring prolonged walking or standing. He found that the Veteran's hemorrhoids and lumbar spine condition prevented him from prolonged sitting, but opined these conditions would not preclude the Veteran from obtaining sedentary employment without manual labor requirements. He stated that the Veteran's hearing problems and tinnitus would prevent him from obtaining any job with constant loud noise exposure. In March 2012, the Veteran was afforded another VA examination. At this time, the examiner considered all of the Veteran's service-connected disabilities as of that date, including major depressive disorder. The examiner related, however, that the Veteran's degenerative joints of the back and shoulders were the most disabling conditions he had and that the Veteran was dependent on narcotics and steroid injections for these conditions. The examiner explained that the severity of these 2 conditions made it difficult for gainful employment in all active settings. The examiner also explained that the Veteran's major depression was so severe that it precluded gainful employment in sedentary settings. On the whole, the examiner concluded that the Veteran was not gainfully employable due to his back condition, left shoulder condition and major depression. The examiner remarked that all other service-connected conditions were stable and not disabling. In February 2013 the Board remanded the claim to obtain another VA opinion to address all of the Veteran's service-connected disabilities, but for major depression, related to his claim for a TDIU. In March 2013, such an opinion was obtained based upon a full review of the claims file. The examiner related that the Veteran's degenerative joints of his back and his shoulders were the "most disabling." He explained that the Veteran was dependent on narcotics and steroid injections, and unable to perform any strenuous activity without significant pain in his back and shoulders. He explained that the Veteran's back condition and shoulder condition impaired his ability to maintain "gainfully successful" employment in either a physical or sedentary environment. With respect to the physical aspect, the examiner explained that the Veteran was unable to perform any activity without "significant pain." In terms of sedentary work, he explained that the Veteran's dependence on narcotics "slows his reaction time and can make him drowsy," which would "impair his ability to maintain gainfully successful employment in a sedentary environment due to maintaining focus." He found that the Veteran's bilateral ankle condition, scar conditions, bilateral knee conditions, hemorrhoids, and hearing loss did not affect his ability to maintain gainfully successful employment in a physical or sedentary work environment. Based on the Veteran's credible testimony, as well as the 2010 and 2012 VA examination reports and the 2013 VA medical opinion, the Board finds that the Veteran's service-connected orthopedic disabilities, and in particular those of the low back and left shoulder, prevent him from obtaining and maintaining substantially gainful physical employment. However, the question of the ability of the Veteran to obtain and maintain substantially gainful sedentary employment in light of his service-connected disabilities remains. In resolving all doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. As outlined above, it is clear that the Veteran is largely prevented in performing manual labor, primarily due to his low back and left shoulder disabilities. Nevertheless, some of the evidence indicates that sedentary employment would be a possibility. See e.g. August 2008 VA Vocational Rehabilitation decision and November 2010 VA examination report. However, the recently obtained VA opinion indicates that the Veteran would be unable to perform sedentary employment due to his reliance on narcotics for pain relief of service-connected disabilities. The Veteran has offered a history of being turned down for sedentary employment for this very reason. The examination report and the Veteran's statements are credible, competent and probative. Thus, in resolving any doubt in the Veteran's favor, the claim is granted. Gilbert, supra. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs