Citation Nr: 1332827 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-42 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION 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). The Veteran served on active duty from June 1987 to February 1993. This case was remanded by the Board of Veterans' Appeals (Board) in April 2013 to the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO) for an opinion on whether the Veteran's service-connected disabilities in combination preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. An opinion was obtained in July 2013. Consequently, there has been substantial compliance with the April 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the United States Court of Appeals for Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). FINDINGS OF FACT 1. The Veteran is service connected for major depressive disorder, 70 percent disabling; for lumbar herniated disk, 40 percent disabling; for status post fracture of the left tibia and fibula, with chronic knee strain, 20 percent disabling; and for right quadriceps tendon repair with residual scar, 10 percent disabling. His combined rating is 90 percent, with a bilateral factor of 2.8 percent for Diagnostic Codes 5260, 5262. 2. A claim for TDIU was received by VA in August 2008. 3. The Veteran has a bachelor's degree in accounting; his prior work experience includes employment at the Post Office and at a bus plant assembly line. 4. It is reasonable to conclude that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his educational background and previous work history. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). Regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). However, because the benefit sought is being granted in full, no further discussion of the VCAA duties is necessary and there is no prejudice to the Veteran in proceeding to the merits of the claim. Analysis The Veteran has contended, including at his May 2011 video hearing, that although he might be able to get temporary work, his service-connected disabilities prevent him from engaging in substantially gainful employment consistent with his education and occupational background. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 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. Disabilities affecting a single body system, such as the orthopedic system, are considered one disability. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity 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 consideration may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Because the Veteran had one disability rating in excess of 60 percent, he has met the percentage standards for consideration of a TDIU rating throughout the claim period. The evidence on file indicates that the Veteran has a bachelor's degree in accounting, and his employment includes work at the Post Office and at a bus plant assembly line. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. On QTC musculoskeletal evaluation for VA purposes in October 2008, the diagnoses were old healed fracture of the left tibia and fibula; right quadriceps tendon repair with residual scar; and lumbar herniated disc, symptomatic. The Veteran was noted to have pain which was treated with Hydrocodone. The examination made no reference to the effects that these disabilities had on his ability to engage in employment. On QTC psychiatric evaluation for VA purposes in October 2008, the Veteran indicated that he had worked at the Post Office from 1992 to 2002 and that he had had "very conflicted relationship" at the job and was eventually fired. However, he also stated that his relationships with his Post Office supervisor and co-workers had been good. He then stated that he was, at the time of the examination, employed by the Post Office. He had also worked at a bus company for four months, December 2003 to March 2004; he had reportedly been fired from this job as well. On mental status examination, he was oriented and his thought processes were appropriate. He had feelings of anxiety, intermittent depression, anger, and paranoia. His short-term memory and concentration were impaired. The impression was major depressive disorder. His GAF score was 70-75. He was noted to have paranoid personality traits and to have difficulty establishing and maintaining effective work/school and social relationships because of his personality disorder. The Veteran's psychiatric symptoms were considered controlled by continuous medication. On QTC evaluation of the spine for VA purposes in April 2009, the Veteran complained of low back pain with radiation to the left leg. He said that he limped and required a cane to walk; no other assistive devices were needed. There was no incapacitation. Physical examination did not show evidence of radiating pain on movement; there was no spasm or tenderness. Straight leg raising was positive bilaterally. Back range of motion included flexion to 30 degrees, extension to 10 degrees, lateral bending to 20 degrees to each side, and rotation to 20 degrees bilaterally. Joint function was additionally limited by pain, fatigue, weakness, and lack of endurance after repetitive use. There was no sign of intervertebral disc syndrome. X-rays of the low back were considered within normal limits. The diagnosis was lumbar strain with herniated disc and limitation of motion. The examiner noted that the Veteran should avoid strenuous activities. VA treatment records reveal GAF scores of 50 in April 2011 and 60 in June 2011. The Veteran complained in September 2011 of constant right knee pain, level 7 out of 10. The assessment was significant knee pain in the quadriceps tendon on medial insertion; it was noted that the pain appeared to be connected with muscle activation. GAF scores were 55 in April 2012, 60 in August 2012, and 75 in December 2012. The Veteran testified at his video conference hearing in May 2011 that he only performed temporary work for the Post Office in October 2008 and was not able to work full time due to his service-connected disabilities. The Veteran's Vocational Rehabilitation File reveals that the employment coordinator noted in March 2012 that the Veteran had never said that he could not work. The Veteran was provided multiple VA evaluations in May 2012, which included review of the claims files. He complained on general medical examination of constant bilateral knee pain and of low back pain with radiation; he indicated that he sometimes wore knee braces and used a cane. He said that he had worked at the Post Office and at a bus plant assembly line. On physical examination of the knees, there was no weakness or atrophy; knee reflexes were decreased. Motor and sensory evaluations were normal. There was no deformity of the spine. Range of motion on VA spine evaluation in May 2012 included flexion to 70 degrees, with pain beginning at 60 degrees; extension to 25 degrees, with pain beginning at 20 degrees; pain-free lateral bending to 30 degrees; and pain-free bilateral rotation to 35 degrees. There was no additional limitation of motion following repetitive testing, no muscle spasm, and no radiculopathy. The diagnosis was mild degenerative changes of the lumbar spine. The examiner concluded that the Veteran's spine condition did not impact on his ability to work and that his subjective symptoms of pain were not consistent with the X-ray findings. Range of motion on VA lower extremity evaluation in May 2012 included right leg flexion to 115 degrees, with pain beginning at 60 degrees, and left leg flexion to 120 degrees, with pain beginning at 70 degrees. There was no additional limitation of motion following repetitive testing and no instability or subluxation/dislocation. The diagnosis was mild degenerative changes of the knees. The examiner concluded that the Veteran's subjective symptoms of pain were not consistent with the X-ray findings. It was noted on VA muscle evaluation in May 2012 that there was a quadriceps tendon rupture of the right knee, with injury to Muscle Group XIV, involving the anterior thigh muscles. There was no evidence of weakness or atrophy of the right quadriceps muscle and no instability. It was the VA examiner's opinion in May 2012 that the Veteran's service-connected disabilities did not cause unemployability, as there was no impairment in body sufficient to render it impossible for the average person to follow substantially a gainful occupation, including a sedentary job such as accounting. The Veteran was provided a VA psychiatric evaluation, with review of the claims files, in February 2013. The Veteran indicated he was doing well and did not need therapy anymore. He was noted to have occupational and social impairment with deficiencies in most areas. His psychiatric symptomatology included depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner noted that the Veteran's GAF scores over the previous two years were from 65 to 75, which indicated mild symptoms, and that the treatment notes indicated improvement in his symptoms of depression. Accordingly, the examiner concluded that the Veteran's depressive disorder did not preclude him from obtaining and maintaining any form of substantially gainful employment. According to a May 2013 statement from a VA physician who has treated the Veteran for his musculoskeletal disabilities, the Veteran's back condition caused chronic pain, with worsening pain several times a month. During a flare-up of pain, the Veteran was unable to do any of his usual activities and must undertake bed rest for 2-4 days. Due to these limitations, the physician concluded that the Veteran could not be gainfully employed at a job that required daily attendance, which most jobs do. Therefore, the Veteran should be considered disabled. According to a June 2013 statement from a VA psychiatric that has treated the Veteran, the Veteran was being treated for recurrent major depression. It was noted that he continued to be severely depressed secondary to his multiple painful physical conditions, due to which he is unable to have any gainful employment. In response to the Board remand in April 2013, a VA opinion was obtained in July 2013 based on a review of the claims files. The reviewer concluded that there are no objective findings that "any allegation singly or the summation of the effect of all service-connected allegations to support the Veteran's claim that there is any impairment of body related to service-connected conditions which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." The reviewer also concluded that the Veteran is less likely as not precluded from all gainful employment related to service-connected disabilities and is at least as likely as not capable of gainful employment. Although the VA opinion obtained in July 2013 in response to the Board remand is against the claim, the opinion is poorly worded and not particularly probative because it fails to cite to any evidence of record and does not address the May and June 2013 opinions in favor of the claim. Although the VA examination findings in May 2012 and February 2013 indicate that the Veteran may be capable of sedentary employment, the Board finds it reasonable to conclude that the evidence as a whole shows sufficient functional impairment due to service-connected disability to warrant a grant of TDIU. While the VA musculoskeletal evaluations in May 2012 and the VA psychiatric evaluation in February 2013 separately found that the Veteran's symptomatology would not interfere with employment, the May and June 2013 statements from VA physicians who have treated the Veteran found that the Veteran's service-connected disabilities were severe enough to preclude gainful employment. A VA physician who has treated the Veteran for his service-connected musculoskeletal disabilities concluded in May 2013 that the Veteran's back pain caused constant pain back with flare-ups several times a month that resulted in the need for bed rest for 2-4 days at a time. Consequently, the Veteran could not be gainfully employed at a job that required daily attendance, as most jobs do. According to the June 2013 statement from the Veteran's psychiatrist, he continued to be severely depressed and is unable to have any gainful employment. Consequently, TDIU is warranted. In adjudicating this claim, the Board has applied the benefit-of-the-doubt doctrine to reach a favorable decision. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU rating is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs