Citation Nr: 1751025 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 17-38 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1952 to April 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut The Veteran most recently provided testimony at a hearing before a Decision Review Officer in February 2016. A transcript of this hearing has been associated with the Veteran's VA claims folder. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected lumbar sprain precludes substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107) (West 2014), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and non-prejudicial. Total disability exists when an impairment of mind or body is sufficiently incapacitating that it prevents the average person from securing or following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2017). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more 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. See 38 C.F.R. § 4.16 (a) (2017). When considering whether the Veteran's disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16 (a) (2017), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. After a review of all the evidence, lay and medical, the Board finds that entitlement to a TDIU is warranted. The Veteran is service-connected for lumbosacral strain, bilateral hearing loss, tinnitus, and residuals of a foreign body in the left eye. His combined disability rating from November 24, 2014 is 70 percent, to include a 40 percent rating for lumbosacral strain. Therefore, he meets the schedular requirements for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(a) (2017) from that date. In November 2014, the Veteran submitted an application for increased compensation based on unemployablility, asserting that he was unable to work due to his service-connected back disability. In a January 2015 statement, the Veteran stated that he had to retire from his position as a Postal Service Fleet Manager in June 1986 after taking over five months of sick leave due to his back disability, noting that even though his position did not require physical work, he was unable to perform his duties as it took very little lifting or motion to activate his disability. The Veteran further stated that he has not worked since his retirement. The Board is aware, however, that the crucial question is not whether the Veteran is actually unemployed but whether he is capable of performing the physical and mental acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In addition, the Board may consider the Veteran's educational and work history when determining employability. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran underwent two VA examinations during the period on appeal that address the impact of the Veteran's service-connected lumbar sprain on his ability to work. In an April 2015 VA examination, the examiner opined that the "[v]eteran is unable to work in jobs which require physical labor like standing and walking repeatedly or for a prolonged time, as well as, lifting and carrying heavy objects and bending and reaching[,]" attributing the Veteran's inability to work to the sum of his back conditions, and noting that the Veteran is still able to perform sedentary work, so long as he is allowed to stand, change positions, and walk when necessary. The Veteran also underwent a March 2017 VA examination, in which the examiner also concluded that the Veteran's service-connected and nonservice-connected back conditions "would likely as not limit his ability to perform any type of physical work but would not preclude sedentary type work." The March 2017 VA examiner also noted that "it is difficult to tease apart what functional impairments and lower back symptoms are due to his SC vs NSC back conditions[,]" and stated that he could not determine the degree to which the Veterans service-connected and non-service-connected conditions factored into the Veteran's functional limitations without resorting to mere speculation. The Veteran also submitted opinions from VA doctors who have previously treated him concerning the impact of his lumbar sprain on his ability to work. In a November 2014 statement, Dr. A.L., the Veteran's primary care VA physician, stated that the Veteran "has lumbar sprain and is unable to work." In a March 2016 statement, Dr. S.H., a physician with the West Haven Veterans Hospital, stated that the Veteran "suffers from debilitating back pain due, at least in part, to a service connected back strain injury[,]" noting that the "pain prevents him from working at a job requiring any significant physical labor such as standing and walking repeatedly for a prolonged time, as well as lifting and carrying heavy objects and bending and reaching." As noted above, the Veteran claims that he is no longer able to work due to his back disability. The record reveals that the Veteran currently has a service-connected lumbar sprain disability, and nonservice-connected canal stenosis, degenerative disc disease, and degenerative joint disease of the lumbar spine. Governing regulation provides that the use of manifestations not resulting from service-connected disease or injury is to be avoided when establishing the service-connected disability evaluation. 38 C.F.R. § 4.14. However, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, as the evidence of record establishes that the effects of the Veteran's service-connected lumbar sprain cannot be distinguished from the effects of his non-service connected low back conditions, the Board will consider all of the Veteran's documented low back symptomatology in evaluating the claim for TDIU. The medical opinions of record all indicate that the Veteran would be unable to perform any type of significant physical labor due to his back disability, but both the April 2015 VA examiner and the March 2017 VA examiner indicated that the Veteran was still able to perform sedentary work where he would be allowed to stand, change positions, and walk when necessary. However, neither VA examination appears to adequately address the Veteran's educational and vocational background in assessing his ability to work. The Veteran has indicated that he received a high school education, received training as an automotive mechanic, and was last employed as a Postal Service Fleet Manager, a position he resigned from due to his back disability. Given that the Veteran's most recent professional experience is in a position which he resigned from due to his back disability symptoms, and that his former position was sedentary and involved minimal physical labor, it is unclear what long term employment the Veteran might be able to obtain with his background that would allow him to work in a less physically demanding environment. In light of the Veteran's lay statements regarding his back disability symptoms and the medical opinions of record, the Board finds that the evidence supports a conclusion that a TDIU is warranted due to the Veteran's service-connected lumbar sprain. ORDER Entitlement to a TDIU is granted. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs