Citation Nr: 1337916 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-50 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from April 1993 to April 1995, November 2000 to April 2008, including service in Iraq from March to July 2003 and from July 2004 to May 2005, and service in Kuwait from August 2006 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2013 when, in pertinent part, it was remanded for additional development. FINDING OF FACT It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants entitlement to a TDIU rating, which constitutes a complete grant of the benefits sought on appeal as to that claim. Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim. The Board has reviewed all of the evidence in the claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim. A total disability 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 the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities consist of the following: sleep apnea, rated 50 percent disabling, effective April 3, 2008; posttraumatic stress disorder (PTSD), rated 50 percent disabling, effective April 3, 2008; lumbar spine degenerative disc disease, rated 20 percent disabling, effective April 3, 2008, and rated 40 percent disabling, effective May 7, 2010; right knee posttraumatic residual degenerative joint disease (right knee disability), rated 10 percent disabling, effective April 3, 2008; left knee supratellar effusion, rated 10 percent disabling, effective April 3, 2008; left knee instability, rated 10 percent disabling, effective April 3, 2008; left lower extremity neuropathy associated with lumbar spine degenerative disc disease, rated 10 percent disabling, effective May 7, 2010; right lower extremity neuropathy associated with lumbar spine degenerative disc disease, rated 10 percent disabling, effective May 7, 2010; right wrist sprain, rated 10 percent disabling, effective August 31, 2011; residuals of right thumb collateral ligament strain, rated noncompensable, effective April 3, 2008; allergic rhinitis, rated noncompensable, effective April 3, 2008; and erectile dysfunction associated with lumbar spine degenerative disc disease, rated noncompensable, effective April 3, 2008. Thus, the Veteran met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). What remains to be determined is whether the functional impairment associated with these disabilities is of such nature and severity as to preclude substantially gainful employment. In addition to his PTSD, the evidence of record shows the Veteran has additional Axis I diagnoses, including depressive disorder not otherwise specified and adjustment disorder with depressed mood. When it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). In this case, the effects of the Veteran's PTSD have not been adequately separated from the other Axis I diagnoses. Accordingly, the Board will attribute those signs and symptoms to the Veteran's service-connected PTSD for the limited purpose of this appeal. On August 2008 VA joints examination, the Veteran complained of bilateral knee pain since 2001, worsened by physical activity, including running. The Veteran reported he was unable to walk a quarter of a mile. He related he has left knee pain, stiffness, weakness, and giving way. He denied any episodes of dislocation or subluxation, locking, effusion, flare-ups or inflammation. On November 2008 VA PTSD examination, the Veteran reported he prefers to stay away from people, staying in his room all the time. It was found the Veteran's psychiatric symptoms were of mild to moderate severity. A GAF score of 60 was assigned. In a March 2009 Wende J. Anderson, Psy. D. private treatment report, a pattern of markedly diminished interest and participation of significant activities was reported. Feelings of detachment or estrangement from others were reported, as was a restricted range of affect. Severe troubles with irritability and angry verbal outbursts were descried. Concentration problems were markedly apparent during the evaluation. A GAF score of 39 was assigned. It was noted that the GAF score was based on his difficulties in multiple areas, including social functioning, employment functioning, family relationships, judgment-related issues, thinking difficulties, and mood. In a May 7, 2010, Paul J. Yocom, D.C., private treatment report, it was noted that the Veteran's current low back symptoms are pain with spasm extending from the lumbosacral area to the thoracolumbar region. The Veteran also has constant pain of the left knee in varying degrees, and the knee occasionally locks. Flexion and extension of the lumbar spine causes significant increase in symptoms. His pain is constant in varying degrees. His current treatment consists of muscle relaxants, ibuprofen, and Tylenol, which offer poor pain control. On physical examination, lumbar flexion was to 20 degrees with marked pain, and his lumbar extension was to 10 degrees, also with substantial pain. He could not rotate or laterally flex his lumbar spine in either flexion or extension positions due to substantial pain. In a May 2010 Wende J. Anderson, Psy. D. private treatment report, the Veteran reported a continued pattern of social isolation. He also reported a problem with anger control, including inexplicable anger and arguing with his wife. A GAF score of 39 was assigned. It was noted that the GAF score was based on his difficulties in multiple areas, including social functioning, employment functioning, family relationships, judgment-related issues, thinking difficulties, and mood. On August 2011 VA spine examination, the Veteran reported persistent low back pain with intermittent episodes of radiating pain into his right leg. He also reported random episodes of increased severity of low back pain that occurs approximately on a yearly basis. He avoids lifting/carrying heavy objects due to his back pain. His treatment includes Motrin, pain medication, physical therapy and trigger point injections. He indicated his low back disability symptoms include stiffness and spasms. He denied having any incapacitating episodes. The diagnosis was degenerative disc disease. The examiner noted that his disability can be aggravated by physical activity and manual labor, and is often exacerbated by bending/twisting and lifting/carrying objects. He is predisposed to episodes of increased intensity and dysfunction. These episodes are most likely precipitated by physical activity, including lifting/carrying heavy objects and bending/twisting activities. On August 2011 VA joints examination, the Veteran reported experiencing left knee crepitus, stiffness and pain involving the anterior aspect of his knee. The pain is made worse with prolonged standing/sitting, kneeling/bending, running and other physical activity. He also indicated he has episodes where his knee buckles. He denied catching/locking. His treatment includes non-steroidal anti-inflammatory drugs, pain medication, therapy, and a brace. He also reported experiencing giving way. He denied episodes of dislocation or subluxation, locking, effusion, or flare-ups of joint disease. It was noted that there were no limitations on standing or walking. On September 2011 VA PTSD examination, it was noted that some of the Veteran's symptoms may be reduced should he obtain gainful employment as this is the primary stressor for his adjustment disorder. He indicated he has lost motivation to obtain employment. He denied any treatment for his PTSD since 2009. He also related markedly diminished interest or participation in significant activities and feelings of detachment or estrangement from others. A GAF score of 53 was assigned. On September 2011 VA general examination, it was noted that the Veteran was currently a student in technical school, and had been a student for one to two years. The VA general examination physician stated that the Veteran's sleep apnea, rhinitis, erectile dysfunction, spine condition, bilateral lower extremity neuropathy, bilateral knee disability, and hand condition would not individually affect his employability. A December 2011 VA primary care report noted the Veteran's complaint of chronic, aching lower back pain (5 to 6 on a scale to 10). The pain is triggered by lifting, standing, sitting, walking, and stress. The pain is relieved by medication. The lower back pain effects his sleep, appetite, daily activities, physical activity, mood, emotions, social life, and walking. On September 2013 VA PTSD examination, it was noted that the Veteran's diagnosed PTSD and adjustment disorder with depressed mood was manifested by occupational and social impairment with reduced reliability and productivity. It was noted that the Veteran attended technical college from June 2010 to September 2012, earning his Associate's degree, and graduated from truck driving school in August 2013. The Veteran related that he had been engaged in small jobs since September 2011, most recently doing custodial work in the summer of 2013. He indicated he has not been employed since March 2010 doing security in Kuwait. The examiner opined that the Veteran's ability to engage in sedentary employment is considered mildly impaired, and his ability to engage in physical employment is considered mild to moderately impaired. It was indicated that the Veteran may benefit from an employment setting in which he is functioning with little interaction with others. On September 2013 VA general examination, the examiner opined that the Veteran's service-connected and nonservice-connected disabilities do not preclude limited duty or sedentary employment not requiring lifting, bending, standing more than 5 minutes, walking more than 50 feet, driving or operating machinery, kneeling or squatting, sitting more than 10 minutes at a time, climbing stairs or ladders, operating a computer keyboard or other manual tasks, and allowing for him to be released from work at a moment's notice to tend to medical needs. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. Geib v. Shinseki, No. 2012-7164 (Fed. Cir. Oct. 29, 2013). The evidence shows that the Veteran has been employed full-time since approximately March 2010. In addition, his education includes an Associate's degree at a technical school and truck driving school certification. His post-service work experience appears to be security and small jobs, such as custodial work. The evidence shows that his service-connected left knee and low back disabilities are worsened by prolonged standing/sitting, kneeling/bending, running and other physical activity. In addition, the evidence shows that his service-connected psychiatric disability has a significant effect on his ability to secure or follow a substantially gainful occupation. The Board finds even more significant the September 2013 VA examiner found that the Veteran's service-connected disabilities do not preclude limited duty or sedentary employment not requiring lifting, bending, standing more than 5 minutes, walking more than 50 feet, driving or operating machinery, kneeling or squatting, sitting more than 10 minutes at a time, climbing stairs or ladders, operating a computer keyboard or other manual tasks, and allowing for him to be released from work at a moment's notice to tend to medical needs. However, based on the limitations that the examiner indicated the Veteran would have based on his service-connected disabilities, the Board is not sure what possible employment would be feasible. Moreover, the VA examiner premised his conclusion on the basis that the Veteran's service-connected disabilities would not preclude limited duty or sedentary employment. However, based on the Veteran's work experience and educational background, sedentary employment does not seem reasonable. Moreover, limited employment is significantly less than that necessary for the award of a TDIU rating which only requires that a veteran be unable to secure or follow a substantially gainful occupation. Based on the evidence presented, the Board finds that the Veteran's service-connected physical and psychiatric disabilities are of such severity that he would be unable to secure or follow a substantially gainful occupation. Given the evidence regarding the severity of the Veteran's service-connected physical and psychiatric disabilities, and the opinions of record, and the other evidence of record indicating the Veteran's functional limitations due to his service-connected disabilities, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, No. 2012-7164 (Fed. Cir. Oct. 29, 2013). Accordingly, the Veteran's appeal of this issue is granted. ORDER Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs