Citation Nr: 1751135 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 07-25 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to October 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.16 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the VCAA, the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). No such arguments have been raised. In light of the foregoing, nothing more is required. The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The Veteran's VA treatment records have been associated with the record. The Veteran has been provided VA medical examinations. The Board remanded the Veteran's claims in April 2012 for additional VA examinations. The requested VA examinations were performed There has been substantial compliance with the April 2012 Board remand decision. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran is seeking entitlement to TDIU. In order to establish 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. 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). The Veteran is service-connected for major depressive disorder, rated as 50 percent disabling; arthritis of the lumbar spine, rated as 40 percent disabling; left leg sciatica, rated as 40 percent disabling; right hip degenerative joint disease, rated as 40 percent disabling; left hip degenerative joint disease, rated as 40 percent disabling; right leg sciatica, rated as 10 percent disabling; left knee strain, rated as 10 percent disabling; and for right knee pain syndrome, rated as noncompensable. His total combined rating is 90 percent. See 38 C.F.R. § 4.25. 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. In March 2009 the Veteran underwent a VA orthopedic examination and the examiner stated that the effect of the conditions on the Veteran's occupation of office furniture salesman was that he could not stand or walk for more than five minutes at a time. He could lift a maximum of 10 pounds. He could not sit for prolonged periods of time. At his March 2010 hearing the Veteran reported that he worked in retail. He stated that he could sit for as long as he wanted, he could get up, he could move, he had freedom. He indicated that he tried to make adjustments for his pain. A November 2014 VA psychiatric examiner opined that the Veteran's depression resulted in occupational and social impairment with reduced reliability and productivity. A November 2014 VA examiner opined that the Veteran's orthopedic and peripheral nerve conditions limited his ability to walk or stand for prolonged periods of time. The examiner noted that his sciatica and back pain caused significant limitations. The Veteran underwent a VA social and industrial survey in March 2016. The VA interviewer noted that the Veteran's physical limitations as a result of his disabilities and service-connected condition have impacted his ability to work as an office salesperson. The Veteran reported increased discomfort and pain, but continued to maintain employment as a salesperson. The Veteran reported that he was confined to his bed after returning home from work each day. The interviewer noted that financial stressors appeared to motivate the Veteran to continue to work despite the effects on his health each day. In November 2016 a VA examiner provided a detailed review of the Veteran's medical history and opined that the Veteran's service-connected orthopedic disabilities, individually and together, should not prevent him from continuing his current job as a furniture salesman. He noted that the Veteran has been able to work for the same company as a furniture salesman since 2005 without any objective evidence of any accommodation and restriction from his employer. He stated that the Veteran should be able to continue to do the same until he no longer had the desire to do so. A VA psychiatrist reviewed the Veteran's medical records in June 2016 and opined that the Veteran's service-connected major depressive disorder would not render him unable to maintain substantially gainful employment. In January 2017 the Veteran's employer confirmed on a VA Form 21-4192 that the Veteran was still working 40 hours a week. The employer indicated that concessions made for the Veteran were no trucks, no deliveries, no stairs and no heavy lifting. In the instant case, although there is evidence that his service-connected disabilities have significant effects on his occupation, the evidence of record clearly shows that the Veteran is currently employed full time. Accordingly, as the Veteran is currently employed full time, the evidence simply does not show that he is unable to secure and follow a substantially gainful occupation. In conclusion, the preponderance of the evidence is against entitlement to a TDIU. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107 (b). ORDER A TDIU is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs