Citation Nr: 1340979 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-16 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board notes that in addition to the paper claims file there is an electronic file associated with the Veteran's claims. Any future consideration of this Veteran's case should take into account the existence of this electronic record. The Board notes that in April 2010 the Veteran submitted his substantive appeal (VA Form 9) in which he requested a Board hearing before a Veterans Law Judge (VLJ). In March 2012, however, the Veteran withdrew that request. Therefore, the Board deems this request withdrawn. FINDINGS OF FACT 1. Prior to January 11, 2012, the Veteran's disabilities of the spine were evaluated as no more than 50 percent disabling. 2. As of January 11, 2012, the Veteran's disabilities of the spine were evaluated as 60 percent disabling, and effective January 23, 2012, the Veteran's disabilities, including adjustment disorder with anxiety associated with his spine disabilities, were evaluated as 80 percent disabling. 3. The competent evidence of record reflects that throughout the appeal period, the Veteran has been unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Effective May 6, 2008, the criteria for a grant of TDIU due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§3.102, 3.159, 3.340, 3.341, 4.16(a), (b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that his established service-connected disabilities prevent gainful employment, thus warranting a TDIU rating. It is the established policy of the VA that all veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided that 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 C.F.R. §§ 3.340, 4.16(a). 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 to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The legal standard for determining TDIU is whether a veteran is able to obtain and/or maintain substantially gainful employment. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Moreover, relevant regulatory provisions specifically state that marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342 (2000). Pursuant to 38 C.F.R. § 4.16(b), when a veteran 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 as 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. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering the 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 a veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering the veteran's master's degree in education and his part-time work as a tutor). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. As mentioned above, the Veteran contends that his service-connected disabilities prevent gainful employment, warranting a TDIU rating. He is currently service-connected for degenerative disc disease, degenerative joint disease, spinal stenosis and spondylolysis of the lumbar spine; and radiculopathy of the lower extremities. The Veteran's service-connected back disability and its manifestations a combined disability rating of no more than 50 percent prior to January 11, 2012 and 60 percent as of January 11, 2012. As of January 23, 2012, the Veteran became service-connected for adjustment disorder with anxiety associated with his spine disabilities, for a combined disability rating of 80 percent. Therefore, prior to January 11, 2012, the Veteran is entitled to consideration of a TDIU only on an extraschedular basis because he did not meet the schedular criteria. As of January 11, 2012, he is entitled to consideration of a TDIU on the schedular basis because all of his disabilities had one etiology, his spine, and they were rated as 60 percent disabling. See 38 C.F.R. § 4.16(a). As noted by the RO, the Social Security Administration found that the Veteran was eligible for disability benefits from that agency primarily due to his back disability effective in July 2007, i.e., prior to the effective date of the appeal. In October 2011, the RO submitted a Memorandum for an Advisory Opinion to the Director of Compensation requesting an opinion as to whether the Veteran's current service-connected conditions affect his employability, thereby entitling him to extraschedular consideration for individual unemployability. The RO addressed the Veteran's August 2007 private opinion where the Veteran's neurosurgeon opined that his anatomical abnormality of the spine rendered him occupationally disabled and an October 2011 VA examiner's opinion that there would be mild to moderate effects on the Veteran's sedentary employment and moderate to severe effects on physical employment, due to his service-connected disabilities. The RO pointed out the Veteran's limited formal education and skills as a mechanic, and said that his opportunities for sedentary employment would be very limited. The RO also acknowledged the Veteran's award of Social Security Disability in July 2007 based on his disorders of the back. Lastly, the RO described the Veteran as a self-employed mechanic with a reported 10th grade education. In a December 2011 Memorandum of Extraschedular Consideration, the Director of Compensation denied the Veteran TDIU on an extraschedular basis because he concluded that the Veteran could perform sedentary employment as long as it was not prolonged in nature and the record contains no evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. Although the Board may not assign an extraschedular rating in the first instance, after a referral has been made and the Director of the Compensation and Pension Service has made a determination regarding TDIU, the Board has jurisdiction to review that determination on a de novo basis. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). For the reasons set forth below, the Board disagrees with that determination and finds that the evidence supports the Veteran's claim of entitlement to a TDIU on an extraschedular basis for the prior to January 11, 2012. The record shows the Veteran has three years of high school with no additional formal training. The Veteran was a self-employed mechanic until 2006, when he retired on Social Security Disability because of his service-connected disabilities. Further, an August 2007 private medical opinion provided that the Veteran's anatomical abnormalities of the spine have significant occupational consequences such that he is occupationally disabled. The Veteran's restrictions included avoidance of repetitive bending, stooping, climbing, falling and squatting, lifting a maximum of 10 to 15 pounds, standing, sitting or walking for more than 10 to 15 minutes without change in position. Since the physician's statements pertain only to the Veteran's service-connected disabilities, it appears the physician believed the service-connected disabilities alone rendered the Veteran unemployable. Therefore, the Board finds this evidence probative. Also of record are VA Compensation and Pension examinations and opinions of unemployability from October 2011, April 2012 and August 2012. Upon examination of the claims file and of the Veteran, including the physician's note mentioned above dated August 2007, the VA examiners concluded that the Veteran's spine conditions impact his ability to work because they impair his ability to stand, sit or walk for prolonged periods of time and that he is also unable to perform activities that would require repetitive bending, twisting squatting, lifting and carrying. The examiners opined that there would be mild to moderate effects on sedentary employment and moderate to severe effects on physical employment. The Veteran may also have difficulty getting employment due to narcotic use [since his disabilities require narcotics to control]. The Board finds the examiners' opinions to be probative on the issue of TDIU because the examiners reviewed the Veteran's claims file, interviewed him regarding his medical and work history, opined as to his employability and supported their determination with a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, given the Veteran's education and work history, and the type of severe restrictions in sedentary employment identified by the VA examiners and the private physician, it appears that the type of sedentary employment the Veteran would be able to perform would be marginal at best, which is not considered substantially gainful employment for VA purposes. 38 C.F.R. § 4.16. The Board acknowledges the opinion of the Director of Compensation and Pension that the Veteran does not meet the extra-schedular requirements for a TDIU. However, the Board notes that the opinion did not take into account the Veteran's limited education and skills. As noted above, the restrictions placed on the Veteran by his spinal disabilities severely limit his employment options, especially when considering his background which is limited to a 10th or 10th grade education and prior work experience exclusively as a mechanic. The Board finds that the evidence of record reflects that the Veteran is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities, particularly in light of his education, training, and work history. The Board concludes, therefore, that entitlement to a TDIU on an extraschedular basis is warranted. Regarding schedular consideration, the only significant difference between the period on appeal prior to January 11, 2012, and the period on appeal beginning January 11, 2012, is the lower evaluation assigned for the Veteran's disabilities in the former period and the higher evaluations assigned for these same service-connected disabilities in the latter period. This difference, unlike a difference in circumstances, causes only a change of the type of a TDIU possible. It does not change the determination that a TDIU is warranted in this case regardless of type. Thus, for the reasons mentioned above, the Board finds that a TDIU on a schedular basis is warranted as of January 11, 2012. ORDER Effective May 6, 2008, a total disability rating based upon individual unemployability is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs