Citation Nr: 1610331 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 09-42 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a total disability rating based upon individual unemployability (TDIU). 2. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD). 3. Entitlement to a rating in excess of 10 percent for right knee DJD. 4. Entitlement to a rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine prior to May 2, 2013, and in excess of 20 percent since August 1, 2013. 5. Entitlement to a rating in excess of 10 percent for hypothyroidism. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active military service in the U.S. Navy from May 1979 to May 1984, September 1984 to August 1989, and August 1992 to October 1993, and in the U.S. Army from November 2011 to September 2002. He also had periods of service with the U.S. Navy Reserve and the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the increased rating claims noted above. The Veteran appealed the adverse actions in this decision and the matters were previously before the Board in July 2013, at which time the Board remand them for additional procedural and evidentiary development. See Stegall v. West, 11 Vet. App. 268 (1998). The Agency of Original Jurisdiction (AOJ) for the Veteran's claims is the RO in Nashville, Tennessee. The issues of entitlement to increased ratings for the left knee, right knee, lumbar spine, and hypothyroidism are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT After resolving all doubt in the Veteran's favor, he is unable to secure or follow gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been 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 In April 2008, the Veteran filed increased ratings claims for his knees, lumbar spine, and hypothyroidism. During the pendency of these claims, the record as a whole has indicated that he was unemployed due to his service-connected disabilities. When entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Thus, the Board concludes that an inferred claim for a TDIU has been raised by the record in connection with the increased rating claims for the Veteran's knees, lumbar spine, and hypothyroidism disabilities pursuant to Rice. TDIU may be assigned when the disabled person 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). 38 C.F.R. § 4.16(a) establishes that 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. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2014). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be 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, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 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). Indeed, 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 a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The Veteran is service-connected for sleep apnea, depressive disorder, osteomyelitis of the right hip with subsequent total joint replacement, DDD of the lumbar spine, left knee DJD, left knee limitation of extension, right knee DJD, hypothyroidism, high blood pressure, hemorrhoids, and residuals of a left inguinal hernia repair. Furthermore, he receives two special monthly compensation benefits due to his disabilities. His combined disability rating meets the percentage threshold set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis because the combined rating for the Veteran's disabilities is 90 percent. Thus, the remaining question to be answered is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In an August 2013 statement to a member of Congress, the Veteran indicated that he last worked in April 2013. The record shows that he was employed in law enforcement with a county department since 1995, and with a sheriff's office since March 1997. The record as a whole further indicates that the Veteran had severe lumbar spinal stenosis and that he had a laminectomy performed on the L4-L5 spinal segments in May 2013 to correct the spinal stenosis. However, in June 2013, he developed septic bacterial arthritis of his right hip, which necessitated a total right hip replacement surgery in early 2014. The claims file contains numerous VA treatment records in which doctors address the Veteran's ability to work due to his service-connected disabilities. Specifically, in a July 2013 VA certification of visit form, a VA doctor remarked that the Veteran had a severe hip problem and that he would not be employable for 12 months. Likewise, in a February 2014 VA orthopedic surgery attending note, a VA physician indicated that the Veteran was in a wheel chair due to his hip problem, and that he continued to be totally unemployable. The doctor further stated that his career in law enforcement is never a possibility and that he would have to undergo at least two major hip surgeries in order to be able to walk. The doctor stated that the Veteran has been 100 percent, totally disabled since May 2013 due to his right hip problem, which was related to his lumbosacral problems and traumatic arthritis. The doctor noted that he did not see hope for improvement in the Veteran's condition. Similarly, in a March 2014 letter, another VA doctor described the process as to how the Veteran received an infection of his right hip. The doctor noted that the infection was very significant and that it destroyed his right hip joint. The Veteran was noted to be ready for a joint replacement surgery, but the doctor also noted that he was disabled and incapacitated, which had an effect on his ability to work. The doctor also reported that this disability very negatively affected his quality of life. The sentiments of these doctors were matched by the findings and opinions of two VA examiners in August 2014. One such examiner noted that the Veteran's right hip disability impacts his ability to work because he was unable to perform any weight bearing on his right hip, he had a decreased range motion in the hip, and he had severe pain in this area. The examiner noted that he had severe functional deficits due to his right hip septic arthritis with a residual deformity. In another August 2014 VA examination report, a VA examiner concluded that the Veteran's depression disability was secondary to his recent surgeries and right hip disability. This examiner concluded that his occupational impairment was complete due to the fact that he relies on a walker or wheel chair to move about. The Veteran reported that even a desk job at a sheriff's department requires an officer to be capable of physical activity. In light of this evidence, and after affording the Veteran the benefit of the doubt, the Board finds that he is unable to secure or follow gainful employment as a result of his service-connected disabilities. The record shows that the totality of his service-connected disabilities prevents him from securing or maintaining gainful employment. Specifically, the claims file includes at least four medical evaluations that indicate that he has significant or total occupational impairment due to his service-connected disabilities. The Board finds it significant that the claims file does not contain a medical, vocational, or lay opinion indicating that he is able to find and maintain a gainful occupation. Given these reasons, and after resolving all doubt in the Veteran's favor, the Board finds that his service-connected disabilities prevent him from being able to secure or follow gainful employment. Thus, the claim of entitlement to a TDIU must be granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). In the present case, the Board is granting the claim of entitlement to a TDIU. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. ORDER Entitlement to a TDIU is granted. REMAND Unfortunately, the Board must remand issues of entitlement to increased ratings for the left knee, right knee, lumbar spine, and hypothyroidism for additional evidentiary and procedural development. These matters must be remanded to associate outstanding records maintained at another Federal facility. Specifically, in an August 2013 statement to a Member of Congress, the Veteran indicated that he filed a disability benefits claim with the Social Security Administration (SSA) in July 2013. Additionally, in an August 2014 VA examination report for his depression disability, he noted that he was utilizing disability benefits. However, there is no indication in the record that VA attempted to obtain these SSA records and such records have not been associated with the claims file. The omission of potentially relevant records, particularly those in the possession of another Federal government agency, necessitates that the claims must be returned for additional development. Thus, an effort must be made to locate and associated any relevant SSA records with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The AOJ should attempt to obtain from the Social Security Administration any records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning such benefits. Any negative responses should be associated with the claims file. 2. After completing all indicated developments above, readjudicate the claims of entitlement to a rating in excess of 10 percent for left knee DJD, a rating in excess of 10 percent for right knee DJD, a rating in excess of 10 percent for hypothyroidism, and ratings in excess of 10 percent prior to May 2, 2013 and in excess of 20 percent since August 1, 2013 for DDD of the lumbar spine in light of all the evidence of record. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs