Citation Nr: 1340248 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-22 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active military service from November 1953 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2013 the Board denied entitlement to a TDIU. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2013 Order, the Court granted a July 2013 Joint Motion for Remand (JMR), which vacated the January 2013 Board decision regarding entitlement to a TDIU. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection has been granted for anxiety disorder, evaluated as 30 percent disabling; lumbosacral strain with osteoarthritis, evaluated as 20 percent disabling; right knee condition, evaluated as 10 percent disabling; degenerative arthritis of the right hip, evaluated as 10 percent disabling; patellofemoral osteoarthritis of the left knee, evaluated as 10 percent disabling; and right lumbosacral radiculopathy, evaluated as 10 percent disabling. The Veteran's orthopedic conditions have a combined rating in excess of 40 percent and the combined service-connected disability rating is 70 percent. 2. The evidence shows that the Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Thus, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). In reaching such a determination, 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 the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric will be considered as one disability. See 38 C.F.R. § 4.16(a)(3). Service connection has been granted for anxiety disorder, evaluated as 30 percent disabling; lumbosacral strain with osteoarthritis, evaluated as 20 percent disabling; right knee condition, evaluated as 10 percent disabling; degenerative arthritis of the right hip, evaluated as 10 percent disabling; patellofemoral osteoarthritis of the left knee, evaluated as 10 percent disabling; and right lumbosacral radiculopathy, evaluated as 10 percent disabling. The Veteran's combined service-connected disability rating is 70 percent. As such, the Veteran does meets the criteria for consideration for entitlement to TDIU on a schedular basis because, his orthopedic disabilities, including lumbosacral strain with osteoarthritis, right knee condition, degenerative arthritis of the right hip, and patellofemoral osteoarthritis of the left knee, represent a combined evaluation in excess of 40 percent disabling and he has additional service-connected disabilities to bring the combined rating to 70 percent. 38 C.F.R. § 4.25. The Veteran seeks entitlement to a TDIU. Regarding the Veteran's employment background, his last employer reported that the Veteran worked as a bus driver from February 1961 to August 1984. He retired from that position. In his application for TDIU, the Veteran reported that he did not leave his last employment due to disability. Regarding his education background, he completed two years of high school and had no additional training or education. A March 2011 VA psychiatric examiner opined that the Veteran's anxiety symptoms would not impact his capacity for employment, but his [nonservice-connected] depression left him unable to work. A March 2011 VA joint examiner opined that the Veteran should have limited physical employment due to his knees, right hip and lumbosacral spine. He could do sedentary light desk work. There was no problem with sitting for extended periods of time; the Veteran did not complain of any pain or discomfort with sitting. His restrictions included no frequent walking or lifting anything greater than 15 pounds. At a VA general medical examination in March 2012, the examiner opined that the Veteran needed an assistive device to ambulate due to the combination of progressive osteoarthritis of the back, hip and spine. As the Veteran was observed to be unstable when attempting to ambulate without the cane, he was capable of less than sedentary work. However, in a clarification opinion obtained in July 2012, the examiner opined that after careful review of the case, the Veteran was capable of doing sedentary work. The need for assistive device for ambulation did not preclude or prevent sedentary work activities. During the hip and spine portions of the examination, it was noted that the Veteran needed an assistive device to ambulate, placing him in a sedentary work status. The use of the term "less than sedentary" in the previous report was incorrect and should be deleted from the report. In August 2013 the Veteran was afforded a VA medical examination. After physical examination the examiner stated: "Back condition is severe; patient is unemployable from this." The Veteran underwent a private Vocational Assessment and a report dated in September 2013 has been associated with the claims file. The expert noted that the Veteran's VA claims file was reviewed and a telephonic interview was performed. The expert identified the Veteran's service connected disabilities and indicated "I will assess whether the Veteran's service-connected impairments, (in the absence of any other non-service connected conditions) render him unable to obtain and retain substantially gainful employment." The expert discussed the Veteran's medical history, including compensation and pension examination reports, and discussed the Veteran employment history. The expert reported that in a March 2011 report of a VA examination it was noted that the Veteran was able to work but was limited to sedentary work. After discussion of the Veteran's physical and work history, and education, stated: [The Veteran] reports having a ninth grade education and a work history of unskilled to semiskilled physically demanding stocking, vehicle cleaning, and driving. Taking into consideration his limited level of academic achievement and work history, [the Veteran] does not possess the industrial history and education to qualify for, obtain, or sustain work consistent with "sedentary desk work" and would require extensive retraining in order to obtain the required skills for this type of work. Therefore; considering [the Veteran] is limited to "sedentary work", the symptoms related to his service-connected disabilities of lumbosacral strain and radiculopathy, osteoarthritis of his knees, degenerative arthritis of his right hip, along with the associated adjustment disorder and depressed mood have prevented him from securing and following a substantially gainful occupation . . . After reviewing the pertinent evidence of record, the Board concludes that the criteria for the award of a TDIU have been met. The Veteran's service-connected disabilities meet the schedular criteria for the award of a TDIU. Although VA examiners have rendered the opinion that the Veteran is capable of sedentary work, a vocational expert has reported that the Veteran does not possess the industrial history and education to qualify for, obtain, or sustain work consistent with sedentary work. In addition, a VA examiner in December 2013 rendered the opinion that the Veteran is unemployable due to his lumbar spine disability. As such, the Board finds that the evidence is at least in equipoise that the Veteran is unemployable. Therefore, entitlement to a TDIU is granted. ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to a TDIU is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs