Citation Nr: 1634587	
Decision Date: 09/02/16    Archive Date: 09/09/16

DOCKET NO.  13-22 059	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, and his mother


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel


INTRODUCTION

The Veteran served on active duty from November 1984 to May 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Veteran testified before the undersigned during a Board hearing held in July 2016.  A copy of the hearing transcript (Transcript) has been associated with the record.


FINDINGS OF FACT

1.  The Veteran is service connected for 10 disabilities: major depression evaluated at 70 percent; disseminated idiopathic skeletal hyperostosis, evaluated at 40 percent; muscular strain of the cervical spine, evaluated at 20 percent; chronic synovitis with symptomatic patellar chondromalacia, status post arthroscopy, left knee, evaluated at 10 percent; muscular strain with synovitis, right foot, with fracture of the first and fourth metatarsals, evaluated at 10 percent; sciatica, left leg, evaluated at 10 percent; and chronic synovitis, first metacarpal of right thumb, residuals of a left wrist injury, status post fracture of the left fifth toe, and a left knee scar, each non-compensably disabling; his combined evaluation is 90 percent.  

2.  The evidence stands in relative equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.
 

CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

The Veteran is service connected for 10 disabilities: major depression evaluated at 70 percent; disseminated idiopathic skeletal hyperostosis, evaluated at 40 percent; muscular strain of the cervical spine, evaluated at 20 percent; chronic synovitis with symptomatic patellar chondromalacia, status post arthroscopy, left knee, evaluated at 10 percent; muscular strain with synovitis, right foot, with fracture of the first and fourth metatarsals, evaluated at 10 percent; sciatica, left leg, evaluated at 10 percent; and chronic synovitis, first metacarpal of right thumb, residuals of a left wrist injury, status post fracture of the left fifth toe, and a left knee scar, each non-compensably disabling; his combined evaluation is 90 percent.  

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 

It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.  Id. 
      
A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the Veteran.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102 (2015). 

Applicable regulations place responsibility for the ultimate total disability rating based on individual unemployability determination on VA, not a medical examiner.  Accordingly, it should now be clear that the ultimate issue of whether a total disability rating based on individual unemployability should be awarded is not a medical issue, but is a determination for the adjudicator.  Geib v. Shinseki, No. 2012-7164 (Fed. Cir. Oct. 29, 2013).  

While VA examinations of record ultimately determined, in each instance, that the Veteran was able to work in some capacity with regard to each specific disability in a vacuum, VA has not provided a single, comprehensive examination to determine whether the Veteran's aggregate disabilities preclude substantially-gainful employment.  Further, while each opinion was negative, examiners nonetheless indicated that the Veteran's service connected disabilities affected his ability to maintain steady work.  In November 2014, a VA examiner indicated that, with accommodation, there was no limitation to sedentary employment [emphasis added].  Most recently, in June 2016, another VA examiner stated that the Veteran's spinal limitations would significantly impede any activities that required spinal mobility, such as bending, twisting, flexion, or extension.  Again, it was noted that such would not preclude sedentary activities, but only those that did not require significant spinal mobility [emphasis added].  The examiner pointed out that flexion and extension, essentially any movement of the spine, would be prohibitive.

During the Veteran's Board hearing, he testified that his service-connected disabilities impaired his ability to perform everyday activities, such as dressing and hygiene.  He also stated that he was unable to sit for more than 30 minutes due to pain.  For treatment, the Veteran took morphine, muscle relaxers, and other medications daily.  An anti-inflammatory, per the Veteran, caused bowel problems.  Further, the Veteran indicated that the medication resulted in a lack of focus, grogginess, and drowsiness (while following prescription instructions).  The Veteran's representative added that it was difficult to carry on a conversation with the Veteran due to the effects of medication, and such was borne out during the Board hearing itself.  The Veteran testified that, in addition to his physical limitations, he was depressed most of the time, and this interfered with his ability to properly function.  Medication was taken for this condition as well.

Taking all reports into account, to include the Veteran's Board hearing testimony, the Board finds that the evidence in this case is so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  As noted, the primary consideration in this case is whether a particular job is realistically within the physical and mental capabilities of the Veteran.  Looking at his several musculoskeletal disorders, his psychiatric disorder, and an excessive amount of strong medication used to treat these conditions, the Board has determined that the evidence here is in relative equipoise, meaning that the evidence for and against the Veteran's claim is essentially equal.  Although VA examinations did not fully support the Veteran's claim, entitlement to TDIU is granted based on the collective evidence of record.  


ORDER

A total disability rating based on individual unemployability (TDIU) is granted.


____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs