Citation Nr: 1332849 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-38 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 28, 2011. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1978 to October 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript has been procured and is of record. In a June 2013 decision and remand, the Board remanded the Veteran's claim for TDIU prior to January 28, 2011 to the Appeals Management Center (AMC) for additional development. As discussed below, because the Board is granting the full benefit sought on appeal, the Board finds that any question of compliance with the terms of the June 2013 remand is now moot. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. For the period prior to January 28, 2011, the Veteran was service connected for a back disability, rated at 40 percent disabling; incomplete paralysis of the right lower extremity, rated at 20 percent disabling; incomplete paralysis of the left lower extremity, rated at 10 percent disabling; ulcers, rated at 10 percent disabling; forehead laceration, rated as noncompensable; fracture of the left middle finger, rated as noncompensable; hemorrhoids, rated as noncompensable; and the combined disability rating was 60 percent. 2. The service connected disabilities have prevented the Veteran from obtaining or retaining substantially gainful employment for the period prior to January 28, 2011. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for TDIU for the period prior to January 28, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.15, 4.16(b), 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the full benefit sought on appeal as it relates to the claim of TDIU prior to January 28, 2011, this claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Entitlement to TDIU prior to January 28, 2011 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In any event, it is the policy of VA 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), 3.340, 3.341, 4.15 (2013). Thus, pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the U.S. Court of Appeals for Veterans' Claims (Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that 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 a veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel interpreted 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 for determining unemployability 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. 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2013); Van Hoose, 4 Vet. App. 361. The fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Board, in a June 2013 decision and remand, granted a TDIU for the period from January 28, 2011 forward under 38 C.F.R. § 4.16(a). Therefore, the only issue on appeal is whether the Veteran is entitled to a TDIU for the period prior to January 28, 2011. In this case, the Veteran contends that he is unable to secure employment due to his service-connected disabilities. Specifically, at the January 2010 Board hearing, the Veteran testified that he was not able to continue working as a cabinet maker after his 2004 back surgery because he was unable to stand or sit for any length of time due to back pain. The record reflects that the Veteran has been unemployed since March 2004. For the period prior to January 28, 2011, the Veteran was service connected for a back disability, rated at 40 percent disabling; incomplete paralysis of the right lower extremity, rated at 20 percent disabling; incomplete paralysis of the left lower extremity, rated at 10 percent disabling; ulcers, rated at 10 percent disabling; forehead laceration, rated as noncompensable; fracture of the left middle finger, rated as noncompensable; and hemorrhoids, rated as noncompensable. The combined rating for this period was 60 percent. Thus, prior to January 28, 2011, the percentage ratings for the Veteran's service-connected disabilities do not meet the minimum combined rating criteria under 38 C.F.R. § 4.16(a) for eligibility for TDIU because service connection was not in effect for one disability rated at least 60 percent disabling, or at least one disability rated at 40 percent with sufficient additional service-connected disabilities such that the combined disability rating was at least 70 percent. Because the Veteran's combined rating did not meet the percentage standards of 38 C.F.R. § 4.16(a) prior to January 28, 2011, the claim for a TDIU may be considered only under 38 C.F.R. § 4.16(b). Pursuant to the Board's remand instructions, the RO referred the case to the Director of VA Compensation Service (Director) for extraschedular consideration decision in June 2013. In an August 2013 decision, the Director concluded that, "the evidence does not establish that the veteran was unemployed and unemployable due to service-connected disabilities prior to January 28, 2011." The Director noted that the January 28, 2011 VA examiner indicated that the Veteran's radiculopathy would give problems walking; the hemorrhoids would cause difficulty sitting for prolonged periods due to pain; the lumbar spine would cause problems with lifting, carrying, and decreased mobility; and, that neither the left middle finger fracture nor the forehead scar would affect daily activities. The Director also noted, based on the VA examination report, that while the Veteran's ability to be employed was substantially impaired, the impairment did not preclude sedentary work. As a result, the Director found that entitlement to TDIU prior to January 28, 2011 under 38 C.F.R. § 4.16(b) was not established. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, see Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); however, the Board, may decide the propriety of an extraschedular evaluation if the Under Secretary or Director reaches a negative determination. Floyd, 9 Vet. App. at 88; see also Anderson v. Shinseki, 22 Vet. App. 423 (2009). After a review of all the evidence, the Board finds that, for the period prior to January 28, 2011, the evidence is in equipoise as to whether the Veteran's service-connected disabilities render him unable to secure (obtain) or follow (maintain) substantially gainful employment. The evidence weighing in the Veteran's favor includes the January 2011 VA examination opinion of substantial impairment due to service-connected disabilities. After a review of the claims file and a comprehensive physical examination, the January 2011 VA examiner opined that the Veteran's ability to be employed is substantially impaired due to the service-connected disabilities. Specifically, the examiner noted that the Veteran is unable to sit or stand for prolonged times due to the back pain and the hemorrhoids, and the Veteran can only walk for a short distance without having to stop and rest due to the back pain and peripheral neuropathy. The examiner indicated that the Veteran would not be able to perform safety-sensitive duties or drive company vehicles due to his narcotic medication use. Particularly, the examiner concluded that the Veteran is unable to perform the work of cabinet making or HVAC (heating, ventilation, and air conditioning)-type work, as he could only perform the most sedentary of work, and then would have to be able to sit and stand up and sit down as needed for the back pain. The VA examination report indicated that the Veteran has been unemployed for five to ten years. The January 2011 VA examiner opined that it is at least as likely as not that the Veteran's service-connected disabilities, together, render him incapable of securing and maintaining substantially gainful employment consistent with his educational and occupational experience. At the January 2011 VA examination and in written statements, the Veteran has reported that he must take narcotic pain medication to treat the back pain, and this use is reflected in the VA treatment records. The Board finds that the use of narcotics impairs the Veteran's ability to operate vehicles and perform safety sensitive duties, some of which are required in cabinet making and HVAC-type work. As noted above, the January 2011 VA examiner indicated that the Veteran would not be able to perform safety-sensitive duties or drive company vehicles due to narcotic medication use. The Board has considered the effect of the Veteran's long-term use of pain medications to treat his service-connected back disability in assessing the overall functional impairment due to service-connected disability. See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability). Additionally, the VA examiner indicated that the Veteran had been unemployed for five to ten years but did not specify the date as to when the Veteran's service-connected disabilities rendered him incapable of securing and maintaining substantially gainful employment. The Board finds that, even without a specific date reference, the VA examiner's assessment tends to support that the Veteran was unable to secure and maintain substantially gainful employment for the period prior to January 28, 2011. Other evidence of record more specifically shows that the Veteran has been unemployed since March 2004. Other evidence in support of the Veteran's claim includes Social Security Administration (SSA) records, which suggests unemployability due to the service-connected back disability. A March 2006 SSA disability determination indicates that the Veteran was awarded disability benefits, effective March 2004, due to service-connected degenerative disc disease of the lumbar spine. While VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA, such findings are evidence to be considered in a TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). The evidence also weighing in the Veteran's favor is an August 2004 physician report that indicates that the Veteran has been continuously unemployable since March 2004 and that the back disability "is going to be a chronic problem" with no bending, lifting over 20 pounds, and no long-time standing or sitting. Additionally, in an October 2010 letter, the Veteran's private treating physician stated that the service-connected back disability makes the Veteran unable to perform work as a cabinet maker, his last profession, because he is without the ability to twist, turn, or lift objects. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude the type of employment for which he is trained and for which he has experience. The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities, particularly the service-connected back disability, hemorrhoids, and bilateral lower extremity neurological disability, render him essentially unemployable, regardless of his occupation. Thus, the Board finds that TDIU for the period prior to January 28, 2011 is warranted under 38 C.F.R. § 4.16(b). 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER TDIU for the period prior to January 28, 2011 is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs