Citation Nr: 1546515 Decision Date: 11/03/15 Archive Date: 11/10/15 DOCKET NO. 14-28 076A ) 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 Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from July 1973 to April 1975 and from January 1989 to January 2007. He is the recipient of numerous awards and decorations, including the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Additional evidence was submitted by the Veteran in April 2015. Although he has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In the instant case, the Veteran's substantive appeal was received in August 2014 and he has not specifically requested AOJ consideration of this evidence. In turn, a waiver of this additional evidence is not necessary and the Board may properly consider such evidence. 38 C.F.R. § 20.1304(c) (2015). This appeal was processed using the Veterans Benefit Management System (VBMS) and Virtual VA paperless claims processing systems, and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT From January 18, 2012, the date of claim, the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Effective January 18, 2012, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant a TDIU herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 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. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). On January 18, 2012, the Veteran filed a claim seeking a TDIU. He indicated that his prior occupation was surgeon and that he had not worked since he had retired from the Navy in January 2007. The Veteran's DD 214 confirmed that the Veteran's primary specialty in the Navy was general surgeon. In a February 2012 Report of General Information, the Veteran reported that his service-connected disabilities had prevented him from working as a surgeon. He averred that his sleep apnea left him fatigued and unable to work night calls. His low back and bilateral knee disabilities prevented him from standing for any length of time to operate and his hypertension was not well-controlled. He also reported that his coronary artery disease hindered him. As of January 18, 2012, the Veteran has been service-connected for obstructive sleep apnea, rated as 50 percent disabling; benign prostatic hypertrophy (BPH), rated as 40 percent disabling; coronary artery disease, rated as 30 percent disabling; lumbar strain with degenerative disc disease, rated as 20 percent disabling; residuals of right dacrocystitis, rated as 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; gastroesophageal reflux disease, rated as 10 percent disabling; right knee degenerative joint disease, rated as 10 percent disabling; left knee strain with degenerative joint disease, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; gout of the right great toe, rated as noncompensable; bilateral cataracts, rated as noncompensable; tension type headaches, rated as noncompensable; and hemi-facial spasm with blepharospasm, rated as noncompensable. As of such date, his total combined rating was 90 percent. See 38 C.F.R. § 4.25. As the Veteran has at least one disability is ratable at 40 percent or more, and a combined rating of 70 percent or more, the Veteran's service-connected disabilities satisfy the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Therefore, the remaining inquiry is whether such disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. The Veteran was afforded a VA examination in March 2012. With respect to his hypertension, the Veteran reported that it was hard to control. He also reported that he had to get up a lot to use the bathroom due to his prostate and in turn, he was on and off the CPAP all night for sleep apnea, which caused him to lose sleep and be sleepy during the day time. The Veteran also claimed that his back affected his ability to lift, and prolonged standing and walking produced pain that also sometimes radiated to the left leg. Prolonged standing and walking also exacerbated pain in his knees. He described that walking up and down stairs caused pain and the left knee felt weaker during this activity. Although he was able to complete activities of daily living, shop and walk for leisure, his coronary artery disease impacted his ability for prolonged walking and climbing stairs made him short of breath and fatigued. However, since having a coronary artery bypass graft in April 2011, he no longer had chest pain. After examining the Veteran and reviewing the record, the examiner addressed the functional impairment caused by the Veteran's service-connected low back, bilateral knee, hypertension, obstructive sleep apnea, and coronary artery disease disabilities. No opinion was given on the Veteran's remaining service-connected disorders. The examiner determined that the Veteran's low back should not preclude employment or occupational duties with respect to sedentary activities. Strength was normal on examination. Likewise, the examiner found that sedentary activities would not be precluded by the Veteran's bilateral knee disabilities. However, due to weakness, he should avoid stair climbing, but he could perform a desk job that was not physically stressful. With respect to hypertension and sleep apnea, the examiner observed that short distance walking was not precluded and the Veteran's muscle strength and manual dexterity were not affected by his hypertension or sleep apnea. Regarding daytime sleepiness due to sleep apnea, it was suggested that operation of dangerous equipment should be avoided, but he certainly would be able to maintain employment at a sedentary or desk job that was not physically stressful. Similarly, the Veteran's coronary artery disease would not preclude employment with regard to sedentary and light duty activities such as office work. Symptoms of shortness of breath occurred on moderate exertion and, thus, for any walking, the Veteran would need to go at his own pace and be allowed to stop and rest. However, desk work was not precluded. In his August 2014 substantive appeal, as relevant to his service-connected disabilities, the Veteran reported that his hypertension had advanced to coronary artery disease. He still had atrial fibrillation and was a candidate for a pacemaker or ablation. He reported urinary incontinence and BPH, which had not improved. He reported taking too many medications which caused side effects from the drug interaction. In a subsequent March 2015 statement, as relevant to his service-connected disabilities, the Veteran reported that he was weak all the time and needed help to perform his daily routine, especially his hygienic care. He used a CPAP machine for his sleep apnea, a walker for his mobility, and hearing aids. He reported that his back had gotten worse and his knees were constantly weak. He also reported wearing diapers all the time due to incontinence from his BPH. After reviewing the totality of the evidence, the Board finds that the evidence of record clearly shows that the Veteran could not return to his previous employment as a general surgeon due to his inability to perform the physically demanding tasks caused by the functional impairment of his service-connected back and knee disabilities as well as coronary artery disease. In this regard, the record shows that that Veteran is unable to perform tasks that require prolonged standing and a surgeon is required to stand for long periods of time when performing operations. Moreover, the Veteran himself has competently and credibly reported to his inability to do the physically demanding tasks of his former employment. Likewise, the VA examiner only indicated that the Veteran could perform sedentary employment and gave no indication that he was capable of performing more physically demanding jobs. However, the question remains whether the Veteran could perform sedentary employment as the March 2012 VA examiner indicated. The Board observes that the Veteran has been identified as a medical doctor. As such, he is competent to offer a medical opinion on the functional impairment caused by his service-connected disabilities. In this regard, the Veteran has reported that he is sleepy and fatigued during the day due to his sleep apnea as well as being woken up due to incontinence. He has also reported that he becomes fatigued from his coronary artery disease. It would be reasonable to assume that being sleepy and fatigued during the day would hinder the Veteran's ability to concentrate, perform certain tasks, and maintain full-time employment even in a sedentary position. Importantly, the Veteran has described being on numerous medications due to his service-connected disabilities that generally impact his ability to function given the side effects. He has also recently reported weakness as well as requiring assistance with his hygienic care due to his service-connected disorders. In sum, the Veteran has generally reported that the functional impairment from his service-connected disabilities preclude him from working. When considering the totality of the functional impairment caused by his service-connected disabilities, as well as taking into consideration his work history as a surgeon, and when resolving all doubt in his favor, it would seem that he would also be precluded from sedentary employment. In sum, the Board finds that the medical evidence in conjunction with the Veteran's competent and credible statements show that his functional impairment due to his service-connected disabilities render him unable to maintain or sustain substantially gainful employment. The Board recognizes that the Veteran has reported that he has not worked since his retirement from the Navy in January 2007. The effective date of an increased evaluation will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). As the record does not contain any evidence clearly documenting the functional impact that the Veteran's service-connected disabilities had on his daily activities, including his employment, within one year of his claim, it is not factually ascertainable that a TDIU was warranted one year prior from the date of claim. As such, the appropriate effective date is the date of claim, January 18, 2012. In conclusion, based on the evidence of record, when resolving all doubt in the Veteran's favor, the Board must conclude that the Veteran was unemployable due to his service-connected disabilities and that entitlement to TDIU is warranted, effective January 18, 2012. 38 U.S.C.A. § 5107(b). ORDER A TDIU is granted, effective January 18, 2012, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs