Citation Nr: 1333054 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 03-11 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran had active duty in the Army from September 1976 to November 1979. He also had additional service in the Army Reserve, including a verified period of active duty from September 1989 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 RO rating decision, which denied service connection for a left hip disability, and denied TDIU. In December 2004, the Board remanded this appeal for further development. In a July 2007 decision, the Board denied the Veteran's claims. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2008, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded. A September 2008 Court Order granted the motion, and in June 2009, the Board remanded this appeal for further development. In a November 2010 decision, the Board again denied the Veteran's claims. The Veteran then appealed the Board's decision to the Court. In April 2011, the parties filed another joint motion which requested that the Board's decision, as to the issue of entitlement to a TDIU rating, be vacated and remanded. The April 2011 joint motion indicated that the parties did not wish for the Court to disturb that part of the Board's decision which denied entitlement to service connection for a left hip disability; an April 2011 Court Order granted the motion. In September 2011, the Board remanded the appeal again for additional development, including for examination of the Veteran and medical opinions. The requested development has been completed. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are: the residuals of a fractured right tibia and fibula (rated 50 percent); osteoarthritis of the right hip (rated 20 percent); donor site scars of the right leg (rated 10 percent); absence of a right lateral cutaneous nerve (rated 10 percent); and bilateral hearing loss (rated 0 percent). 2. The Veteran's service-connected combined disability rating is 70 percent, including a single service-connected disability rated at 40 percent or more. 3. The evidence of record shows the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is required to meet statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Given the favorable outcome below, no conceivable prejudice to the Veteran could result from the grant of TDIU. See Bernard v. Brown, 4 Vet. App. 384 (1993). A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, although appropriate cases must be referred to the Under Secretary for Benefits or the Director of the VA Compensation and Pension Service for such extraschedular consideration. Bowling v. Principi, 15 Vet.App. 1 (2001). In determining whether a veteran is entitled to a TDIU rating, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. The Veteran's service-connected disabilities are residuals of a fractured right tibia and fibula (rated 50 percent); osteoarthritis of the right hip (rated 20 percent); donor site scars of the right leg (rated 10 percent); absence of a right lateral cutaneous nerve (rated 10 percent); and bilateral hearing loss (rated 0 percent). He has a combined service-connected disability rating of 70 percent, including a single service-connected disability rated at 40 percent or more. Therefore, the Veteran satisfies the percentage criteria for the assignment of TDIU under 38 C.F.R. § 4.16(a). The remaining question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background. A review of the record reveals that the Veteran completed four years of college and that his most recent occupation was as an engineer. He reports that he last worked full time in November 2002 and that he was laid off because of his disability. Records from the Social Security Administration (SSA) indicate that Veteran was receiving disability compensation and that he became disabled as of October 2002. The SSA records show that the Veteran's severe impairments were major depression, osteoarthritis of both hips, and degenerative disc disease and arthritis of the lumbar spine. While SSA determinations are evidence that VA must consider, they are not controlling on VA, because the laws and regulations involved provide for significant differences in the determination of disabilities under the SSA and VA systems. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). There are several VA examination reports of record which include opinions from examiners addressing the Veteran's employability. For example, a September 2005 VA examination report indicated that the Veteran was getting neither adequate pain management nor current treatment. The examiner stated that "it would seem that until either of those two things were at their optimum, it [was] unrealistic to think that the Veteran could secure or follow a substantially gainful occupation." Subsequently, an August 2006 VA general medical examination report commented that the Veteran would "not be able to perform physical employment, [but] he seemed appropriate for sedentary employment." Further, the medical opinion expressed in an October 2009 VA orthopedic examination report indicated that the Veteran was "definitely employable." The examiner noted that the Veteran's service-connected disabilities included limited knee extension, paralysis of external cutaneous nerves, superficial scars, a thigh condition, and impaired hearing. The examiner stated that those service-connected disabilities would not prohibit the Veteran from working. The examiner reported that there were sedentary, desk-type, jobs that the Veteran could perform. The examiner commented that, "therefore, his service-connected disabilities would not prevent him from working and he could certainly obtain employment that would suit him." In January 2012, the most recent VA Compensation and Pension examination of the Veteran was conducted. The examiner stated that: the Veteran has physical limitations of mobility and function to his service-connected right lower leg/knee and right paralysis of external cutaneous nerve, he is unable to stand, sit or walk even for short periods of time. He has a diagnosed chronic pain syndrome secondary to his service-connected right lower leg/knee and service-connected paralysis of external cutaneous nerve condition. This chronic pain syndrome causes excruciating pains in the service-connected right lower leg/knee, requiring the Veteran to take round the clock pain medication including narcotics - making the Veteran groggy and unfocused. An example today - the Veteran drifted off to sleep in the examiner's office, then awakened suddenly with lower leg/knee pain. The Veteran has not worked productively for years, he would miss work and call off. . . . The Veteran's service-connected right lower leg/knee and service-connected nerve paralysis conditions does impact the Veteran's ability to maintain and obtain gainful employment. In June 2013, a private vocational assessment of the Veteran was conducted by certified rehabilitation counselor / disability management specialist. The specialist reviewed the evidence of record, conducted a telephone interview, and concluded that the Veteran's service-connected disabilities "prevent him from securing and following a substantially gainful occupation." The Veteran's service-connected disabilities which are most disabling involve the residuals of a fracture of the right tibia and fibula including osteoarthritis of the right hip and an absence of a right lateral cutaneous nerve. The January 2012 VA examination report indicates that these disabilities result in chronic pain. Generally, there is agreement in the medical opinions of record that these disabilities prevent the Veteran from physical employment. Where there is disagreement in the medical opinions of record is whether the service connection disabilities prevent the Veteran from following a sedentary occupation. The most recent VA examination indicates that the Veteran's use of prescribed medication to control symptoms of pain resulting from his service-connected disabilities render him unsuitable to maintain even sedentary employment. This opinion is supported by the findings of the September 2005 VA examination and the June 2013 vocational assessment. The Veteran meets the schedular criteria for the required disability ratings and is shown to be unemployable as the result of his service-connected disabilities. Accordingly, TDIU is warranted. 38 C.F.R. § 4.16. ORDER TDIU is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs