Citation Nr: 1604926 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 08-12 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total rating based upon individual unemployability based upon service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from September 1982 to February 1988. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the claim on appeal in September 2011, and in April 2014. In May 2011 the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's file. The VLJ who conducted that hearing is no longer employed at the Board. The Veteran was notified, in December 2015, that he was entitled to another hearing before the Board. The Veteran submitted a communication, in writing, declining his right to appear again before the Board. The Board notes that the electronic record of the Veteran's appointment of the American Legion as his representative is apparently incomplete in the electronic record. The American Legion has represented the Veteran since 1988, when the appointment, which is now incomplete, was placed in the record. It is clear that the American Legion represents the Veteran in this appeal. It would be adverse to the Veteran's interests to delay the favorable decision below to obtain a more complete electronic copy of the appointment. The Veteran's claims file is wholly electronic. FINDING OF FACT The Veteran's service-connected disabilities are of such severity as to effectively preclude all forms of substantially gainful employment for which the Veteran's education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Currently, the Veteran has been granted service connection for: mood disorder due to general medical condition, evaluated as 30 percent disabling from March 2009, and as 70 percent disabling from January 2012; intervertebral disc syndrome with herniated nucleus pulposus status post in-service laminectomy, evaluated as 60 percent disabling since 1999; osteoporosis and bursitis, right hip, evaluated as 20 percent disabling from January 2012; osteoporosis and bursitis, left hip, evaluated as 20 percent disabling from January 2012; limitation of extension, left hip, evaluated as 10 percent disabling from February 2008; limitation of flexion, right hip, evaluated as 10 percent disabling from February 2008; left lower extremity radiculopathy, evaluated as 10 percent disabling from February 2008; limitation of extension, right hip, evaluated as 10 percent disabling from January 2012; and, limitation of flexion, left hip, evaluated as 10 percent disabling from January 2012. The Veteran's combined evaluation for compensation was 70 percent from February 2008 to March 2009, when his combined percentage increased to 80 percent. From January 13, 2012, the Veteran is rated as 100 percent disabled (a total schedule are evaluation). Veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the level of education, special training, and previous work experience in making this determination, but not to the Veteran's age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Following the Veteran's service separation in 1988, the Veteran worked as a supervisor in a textile mill for several years, then as a machine operator in a plant manufacturing feminine hygiene products, then as a machine operator in a plant manufacturing spark plugs. The Veteran was notified by his employer in March 2008 that he had exhausted his Family Medical Leave Act (FMLA) benefits, and that the employer was unable to accommodate physical work restrictions prescribed by the Veteran's physician. The Veteran sought increased VA compensation, and sought disability benefits from the Social Security administration (SSA). SSA records reflect denial of disability benefits. In 2009, the Veteran was provided with an internal TENS (transcutaneous electrical nerve stimulation) unit. In 2010, an infection developed in the area of the TENS unit. The Veteran required inpatient hospitalization to treat the infection. The internal TENS unit was removed. The examiner who conducted an October 2011 VA examination concluded that the Veteran was unable to secure or and maintain substantially gainful employment requiring labor, but "might" (or might not) be able to secure and maintain gainful sedentary employment. The record reflected that the Veteran participated in VA Vocational Rehabilitation program. The record suggested that the Veteran attended academic classes in 2010, but was unable to maintain his academic work, possibly around the time of the tens unit infection, hospitalizations, and surgery. The record included references suggesting that the Veteran might have been pursuing an Associate of Arts (AA) degree in sales. The record also suggested that the Veteran might have remained in a VA Vocational Rehabilitation program as late as 2012. However, no VA records pertaining to education benefits or vocational rehabilitation were of record. The Board's 2014 remand directed, in part, that VA Vocational Rehabilitation records be associated with the claims file. No VA Vocational Rehabilitation records were located. The examiner who conducted June 2014 VA examination was advised that the Veteran's post-service employment was primarily as a machine operator. The examiner concluded that he was not able to determine whether the Veteran's service-connected disabilities, considered alone, resulted in unemployability. The provider concluded that the Veteran's ability to obtain or maintain substantially gainful employment was a vocational determination, not a medical determination. The examiner who provided a December 2014 opinion concluded that the Veteran's service-connected back, hip, and radiculopathy disabilities would permit sedentary employment. The examiner also stated that the Veteran's mood disorder would allow him to engage in sedentary employment that did not require significant interaction with the public, such as sales or customer service, and that did not require multi-tasking or having to remember multiple steps or instructions. The Veteran graduated from high school, prior to his induction into service in 1982. Following service, he worked in a textile mill and as a machine operator, employment requiring manual labor or considerable standing, lifting, and bending. The Veteran's employment was terminated on the basis that was absent from work for medical reasons and that work restrictions required by his service-connected back disability could not be accommodated. The Veteran then participated, apparently, in a VA vocational rehabilitation program to prepare him for sedentary work in sales, but the details of the Veteran's participation are unavailable, through no fault of the Veteran. The record establishes that the Veteran is medically capable of sedentary employment, so long as it does not require interaction with the public or require the Veteran to follow instructions. Although no details are known, the record suggests that a VA Vocational and Rehabilitation program may have concluded that the Veteran could be prepared for employment in sales. The current medical evidence, however, reveals that, even if the Veteran completed a program that would prepare him to obtain a sedentary sales job, he would be unlikely to maintain that employment. The Veteran has never performed sedentary employment. There is no evidence that his education and occupational experience qualify him for sedentary employment which does not require interaction with the public. The Board concludes that the evidence is at least in equipoise to warrant a finding that the Veteran's service-connected disabilities preclude him from following substantially gainful employment of any type for which he is prepared. The Veteran meets the criteria for an award of TDIU. The RO will assign the effective date for that award when it effectuates this decision. The Veteran will have the right to appeal that decision. VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence. As the Board's decision is favorable to the Veteran, no additional notice or development would be in the Veteran's interest. ORDER The appeal for TDIU is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs