Citation Nr: 1414922 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 06-22 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied an increased disability rating in excess of 40 percent for the Veteran's service-connected lumbar spine disability and an increased disability rating in excess of 10 percent for the service-connected bilateral pes planus disability. Following the February 2006 rating decision, the Veteran asserted entitlement to TDIU, which was denied in a December 2006 rating decision by the RO. This matter has previously been before the Board. In October 2009, the Board remanded the issue of a TDIU for initial adjudication by the RO under 38 C.F.R. § 4.16(b) (2013). In July 2011, the Board remanded the issue of TDIU a second time with instructions to obtain Social Security Administration (SSA) records and for the RO to readjudicate the claim. The additional development has been completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT The Veteran is unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Given the favorable outcome adjudicated herein, resulting in a grant of a TDIU under 38 C.F.R. § 4.16(b), no further explanation is required as to how VA has fulfilled the duties to notify and assist. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). TDIU Legal Criteria A claim for a TDIU is, in essence, a claim for an increased rating. See Rice, 22 Vet. App. 447; Norris, 12 Vet. App. at 420. A TDIU claim is an alternative way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1) (2013). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). A TDIU may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Rating boards are required to submit to the Compensation and Pension Service Director (C&P Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Court has clarified that, where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Compensation and Pension Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17(a) (2013). TDIU Analysis In a September 2006 VA Form 21-4138, the Veteran asserted that he is unemployable due to his service-connected low back disability. The Veteran submitted an October 2005 letter from a VA physician, wherein the VA physician opined that the Veteran is "100% disabled and will never be able to work." Initially, the Board finds that the Veteran does not meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of TDIU because the combined rating of the service-connected disabilities does not reach 70 percent. For the entire rating period, the Veteran has been service connected for two disabilities: low back strain with herniated disc disease L3-L4, and bilateral pes planus. The record does not indicate that these service-connected disabilities resulted from a common etiology or a single accident, that they affect a single body system, or that they were incurred in action or as a prisoner of war; therefore, the two service-connected disabilities are not considered a single disability. See 38 C.F.R. § 4.16(a). Thus, at the highest point during the rating period, which has been in effect from October 22, 2012 to the present, the combined disability rating of these disabilities was 60 percent. Because the Veteran has more than one service-connected disability, the combined schedular rating of all disabilities must be at least 70 percent to meet the schedular criteria under 38 C.F.R. § 4.16(a) for consideration of TDIU. As this matter was adjudicated by the C&P Director in March 2005 following referral by the RO, the Board has jurisdiction to consider whether the Veteran is entitled to a TDIU under the provisions of 38 C.F.R. § 4.16(b). The Veteran has a work history that includes positions as a cook, painter, roofer, landscaper, trucker, laborer, retail stocker, and baker. See November 2010 VA examination report; April 2009 VA examination report. The Veteran last worked in approximately 2002, when he left the workforce due to back pain. See September 2006 VA Form 21-8940; December 2006 VA Form 21-4192; April 2004 VA examination report. The Veteran reported his highest level of education as three years of college, without specifying a course of study. See December 2006 VA Form 21-4192. The Veteran was granted SSA disability benefits in April 2007, effective September 2005, in consideration of service-connected and nonservice-connected disabilities. The April 2009 VA examination report notes that the Veteran quit his last job - as a baker, four or five years earlier - because back pain was causing him to miss too many days at work. The Veteran reported constant low back pain, but did not discuss additional back pain, including pain affecting the upper back. The Veteran explained that the low back pain increases after sitting or standing for more than an hour. Lifting or carrying more than five pounds, twisting, and walking over one block were also noted to increase low back pain. The November 2010 VA examination report reflects "no significant effects" on occupational and daily activities caused by the service-connected foot disability, and "problems with lifting and carrying; lack of stamina; weakness or fatigue" associated with the service-connected low back disability. The VA examiner opined that the Veteran is "limited in his abilities to stand or walk for a prolonged period of time. If he were to rejoin the workforce he would be limited to a position that does not require prolonged standing or walking, as well as a position that requires no bending, lifting, crawling, kneeling, or overhead work." VA provided an additional examination in October 2012 for a medical opinion on whether the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. The VA examiner opined that the service-connected low back disability impacted the Veteran's ability to work; specifically, that the Veteran was limited in ability for prolonged standings and walking, and with sitting for more than 30 minutes. Similarly, the VA examiner opined that the service-connected bilateral pes planus limited the Veteran's prolonged standing and walking ability. On review of the overall disability picture created by the two service-connected disabilities, the VA examiner opined that "when viewing only his VA service connected disabilities, [the Veteran] would be able to work" with limitations including no standing, no prolonged walking, no sitting for more than 30 minutes at a time, and no sitting for more than 4 hours in a day. The Veteran had no restrictions relating to reading, writing, or communicating. In reaching this opinion, the VA examiner in October 2012 noted that a previous VA physician opined in October 2005 that the Veteran is "100% disabled and will never be able to work." As the October 2012 VA examiner correctly pointed out, the October 2005 opinion was based on the impact of the nonservice-connected cervical spine disorder. The October 2005 opinion fails to differentiate the occupational impairment caused by service-connected disabilities from that of non-service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (stating that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). See also 38 C.F.R. § 4.14 (2013) (both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided). The October 2012 VA examiner opined that, when the (non-service-connected) cervical spine disorder is taken into account, the Veteran is unemployable; however, as the TDIU analysis focuses only on the impact of service-connected disabilities, the October 2012 VA examiner's opinion on employability for TDIU purposes was that the Veteran has not been rendered unemployable due to only the service-connected disabilities. As noted above, the evidence includes the opinion of a VA physician who opined in October 2005 that the Veteran is unemployable. While this VA physician was the Veteran's primary care physician, the Board recognizes that the U.S. Court of Appeals for Veterans Claims has not fully embraced a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of any other examiner. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. at 467, 471-73 (1993). Nevertheless, the length of an examiner's opportunity or opportunities to examine a claimant may be considered in assigning probative weight. Guerrieri, 4 Vet. App. at 471-73. However, this VA physician's opinion, as identified by the October 2012 VA examiner, is based on service-connected and nonservice-connected disabilities. The October 2005 letter clearly states the consideration of "severe disk disease in lumbar and cervical spine, for which [the Veteran] has had multiple surgeries with complications, including infection and reherniation" (emphasis added). The Veteran is not service connected for a cervical spine disability. Nevertheless, when comparing the severity of pain in the cervical and lumbar spinal regions, this VA physician indicated that the pain in the lumbar spinal region is "the most trouble" for the Veteran. See April 6, 2006 VA treatment note. As to the Veteran's statement that he is unemployable due to the service-connected low back disability and that he retired due to low back pain, the Board finds the Veteran competent to report that he left the workforce because of back pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Moreover, the Board finds the Veteran's statement credible. In consideration of all the evidence, the Board finds the weight of the evidence is in equipoise on the question of whether the Veteran is unable to secure or follow substantially gainful employment by reason of service-connected disabilities. Although VA medical examiners in November 2011 and October 2012 opined that the Veteran would be employable with limiting conditions, the Board finds that these limiting conditions - which include no standing, prolonged walking, sitting for more than 30 minutes at a time, sitting for more than 4 hours in a day, bending, lifting, crawling, kneeling, or overhead work - do not afford the Veteran an opportunity to pursue more than marginal employment. With an employment history as a cook, painter, roofer, landscaper, trucker, laborer, retail stocker, and baker, the Veteran is likely to encounter significant challenges to finding "substantially gainful employment" that accommodates the limitations associated with his service-connected disabilities. The Veteran credibly asserted that he retired due to low back pain, and the VA physician who stated the Veteran is "100% disabled and will never be able to work" has noted that the service-connected low back disability presents the most trouble for the Veteran, as compared to the nonservice-connected cervical spine disorder. In consideration of the factors above, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for TDIU under 38 C.F.R. § 4.16(b) have been met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A TDIU is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs