Citation Nr: 1343455 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-33 182 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a total rating based on unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the RO. In June 2010, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge; a transcript of this hearing is associated with the claims file. In December 2010, the Board remanded this issue for additional development. The development has been completed and the case has been returned to the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of service connection for an innocently acquired psychiatric disorder claimed as secondary to the service-connected disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and again refers the matter to the AOJ for appropriate action. FINDING OF FACT The service-connected disabilities are shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for the assignment of a TDIU rating are met. 38 U.S.C.A.§§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.§§ 3.340, 3.341, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). To the extent that the action taken hereinbelow is favorable to the Veteran, the Board finds that further discussion of VCAA is not required at this time. Laws and Regulations Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). A total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (pursuant to 38 C.F.R. § 4.16(b)). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her 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 sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Analysis In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a TDIU rating on a schedular basis as service connection was in effect for degenerative disc disease (DDD), L5-S1 (rated as 20 percent disabling), right lower extremity radiculopathy associated with DDD, L5-S1 (rating as 20 percent disabling), left knee osteoarthritis (rated as 10 percent disabling), left knee instability (rated as 10 percent disabling), hypertension with mild left ventricular hypertrophy (rated as 10 percent disabling), degenerative joint disease of the right knee (rated as 10 percent disabling), left lower extremity radiculopathy associated with DDD, L5-S1 (rated as 10 percent disabling), onychomycosis (rated at no percent), right eye cornea abrasion (rated at no percent), hemorrhoids (rated at no percent), benign colonic polyp (rated at no percent), excision of lipoma left groin (rated at no percent), headaches (rated at no percent) and insomnia (rated at no percent) ; the combined rating for all of these service-connected disabilities is 70 percent. Thus, the Board turns its focus to consideration of whether the Veteran is unemployable due to his service-connected disabilities. In a January 2005 statement, the Veteran's physician indicated that he had treated the Veteran for multiple disorders, including a cardiac disorder and bilateral knee disorder. The physician indicated that the Veteran's bilateral knee disorder had progressively worsened over the years. The physician concluded "due to [the Veteran's] multiple and chronic health conditions, which includes a cardiac condition, I am recommending medical retirement and find that [the Veteran] cannot obtain gainful employment." An August 2005 "Return to Work Medical Clearance Guidelines" completed by the Veteran's physician documented, in pertinent part, that the Veteran "could not do anything except completely sedentary work." In a September 2005 statement, the Veteran's physician confirmed that the Veteran was "considered to be totally disabled and unable to gain employment." The physician found that the Veteran's condition was permanent based on his health disorders, which consisted of severe arthritis, prosthetic heart valve and peripheral neuropathy. In a December 2005 statement the private physician reported that the Veteran was currently disabled because of severe degenerative arthritis in his knees, degenerative arthritis of his lumbar spine, bilateral peripheral neuropathy, and a heart condition requiring chronic coumadinaization. The physician explained that the condition would only worsen rather than improve and concluded that "[he felt] this [was] a permanent total disability." Employment documents from the United States Postal Service and Office of Personnel Management reflect that the Veteran was approved for disability retirement. In the report of July 2007 VA joints examination, the examiner concluded that the bilateral knee disability at least as likely as not prevented the Veteran from engaging in physical work, but did not prevent the Veteran from engaging in sedentary work. The report of July 2007 VA intestines examination reflects that the Veteran's hemorrhoids and colonic polyps had no effect on his employment. The report of July 2007 VA hypertension examination reflects that the Veteran's hypertension, alone, was not hindering him from attaining employment. The report of July 2007 VA heart examination reflects that from a cardiac standpoint, the Veteran was able to work at a "sedentary, stationary, i.e., desk job." The report of July 2007 VA general medical examination documents that "sedentary employment should not be hindered." The March 2008 decision of the Social Security Administration (SSA) reflects that the Veteran's severe impairment included bilateral knee disability, peripheral neuropathy and aortic heart valve replacement. The SSA decision reflects, in pertinent part, that the Veteran has the residual functional capacity to perform less than a full range of sedentary work; he was unable to perform any past relevant work (the Veteran's past relevant work included mail handler, corrections officer, and military instructor); his acquired job skills did not transfer to other occupations within the residual functional capacity; and, considering his age, education, work experience and residual functional capacity, there were no jobs that exist in significant numbers in the national economy that the Veteran could perform. Pursuant to the December 2010 remand, the Veteran was afforded VA examinations to evaluate the degree of functional impairment caused by his service-connected disabilities. In the report of August 2011 VA joints examination, the physician concluded that due to the bilateral knee disability, the Veteran would not be able to perform jobs requiring long standing, walking, climbing or heavy lifting. In the report of August 2011 VA peripheral nerves examination, the physician determined that, due to the bilateral lower extremity radiculopathy, the Veteran would have difficulty performing jobs that required long standing, walking or heavy lifting. In the report of August 2011 VA spine examination, the physician reported that due to the lumbar spine disability, it would be difficult for the Veteran to have a job requiring prolonged sitting, standing, walking, or any job requiring heavy lifting of more than 40 pounds. Finally, in the report of August 2011 VA hypertension examination, the physician stated that the Veteran's blood pressure was well controlled with medications and in that regard could perform jobs like an average person. While the Board is aware, that the July 2007 reports of multiple VA examinations indicate that the Veteran could engage in sedentary employment, equally competent and credible evidence of record indicate that the Veteran could not perform jobs requiring prolonged sitting or standing (August 2011 reports of VA examinations). Further, other equally competent and credible evidence specifically found that the Veteran was unable to gain employment (September 2005 statement of private physician). Finally, the Board notes that employment documentation reveals that the Veteran was approved for disability retirement. Accordingly, the Board finds that the evidence documented above is in equipoise in showing that the Veteran has been rendered unemployable due to service-connected disabilities. Given that the Veteran meets the schedular requirements, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU rating is warranted. ORDER Entitlement to a TDIU rating is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs