Citation Nr: 1751177 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 07-25 691 ) 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 Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active duty service from October 1996 to October 2004. This case is before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from an April 2008 rating decision of the VA Regional Office (RO), which in part, granted service connection for tinea pedis of the feet, assigning a noncompensable evaluation effective December 12, 2005. The Veteran appealed for higher initial rating. The Veteran was scheduled for a Board hearing in April 2010; he cancelled this proceeding in advance of the scheduled hearing date. See 38 C.F.R. § 20.704(e) (2016). The Board's July 2010 decision remanded the appeal regarding tinea pedis, also denying increased rating for carpal tunnel syndrome, right and left wrists. The RO later recharacterized tinea pedis as dermatitis of both feet and hands. In January 2013, the Board remanded the appeal, not without first finding informally raised an inextricably intertwined TDIU claim. At that time, the Board took appellate jurisdiction of the matter. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also VAOPGCPREC 6-96 (Aug. 16, 1996). The Board subsequently remanded this matter in July 2016 and again in July 2017. FINDINGS OF FACT 1. Effective December 12, 2005 through August 18, 2010, the medical and other evidence of record does not indicate that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience. 2. Effective August 19, 2010 through April 22, 2014, the medical and other evidence of record indicates that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience. 3. Effective April 23, 2014 through March 13, 2016, the Veteran was incarcerated for a felony. 4. Effective March 14, 2016 through November 24, 2016, the medical and other evidence of record indicates that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience. 5. Effective November 25, 2016, the Veteran's service connected disabilities have a combined evaluation of 100 percent. CONCLUSIONS OF LAW 1. Effective December 12, 2005 through August 18, 2010, the criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2016). 2. Effective August 19, 2010, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2016). 3. Effective April 23, 2014 through March 13, 2016, the criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341(b), 4.16 (2016). 4. Effective March 14, 2016 through November 24, 2016, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2016). 5. Effective November 25, 2016, the issue of entitlement to a TDIU is moot. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In July 2009 and April 2014 letters, the RO sent the Veteran notification letters. The duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2016). In this appeal, relevant service treatment and other medical records have been associated with the claims file. The Veteran was given VA examinations in July 2006, March 2008, August 2008, April 2009, November 2009, August 2010. The examiners reviewed the claims file in conjunction with the examination, and addressed all relevant issues. As such, the Board will proceed to the merits. TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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. Entitlement to TDIU is based on an individual's particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 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 § 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19; see also Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (en banc) (stating that "when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history"). The Veteran underwent a VA examination in February 2006. He stated that he was employed as a mechanic, which he performed for 9 years; but that his last date of employment was January 2006. The examiner found that the Veteran did not lose any time from work due to head scars, a low back disability, pseudofolliculitis barbae, or dermatitis on his feet. He was able to brush teeth, take a shower, vacuum, drive a car, cook, climb stairs, dress self, take out the trash, walk, shop, perform gardening activities and push a lawn mower. The Veteran underwent a VA examination in July 2006 for bilateral carpal tunnel syndrome. The Veteran had tingling and numbness of the fingers all fingers in both hands. He had weakness of the fingers all fingers of both hands. The symptoms described occur constantly. Regarding functionality, the examiner noted that the Veteran's carpal tunnel syndrome causes difficulty with grip strength. A March 2008 outpatient treatment report reflects that the Veteran was working at Hertz Equipment Rental until he was laid off a week earlier. Another March 2008 treatment report reflects that pain, weakness, and numbness in his hands was moderately disabling; but that he did not lose any time from work due to carpal tunnel syndrome (CTS) (VBMS, 3/1/08, pgs. 9-10). A March 2008 VA examination for the Veteran's CTS reflects that the Veteran was still working as a mechanic. He reported that finger numbness and weakness have gradually worsened; and that his loss of dexterity makes it difficult to handle tools. He reported absent pinprick, decreased light touch and temperature sensation over all fingers - distal to MCP joints, bilaterally. He reported that he frequently needs to stop to relax his hands. The examiner stated that because of the associated pain, paresthesias and hand weakness, this condition (bilateral CTS) has been moderately disabling to him in terms of discomfort and impairing his level of efficiency/performance at work, though he has not reported missing any work because of his CTS symptoms. The examiner noted a July 2007 statement of the Veteran in which he stated that he needs to stop his work as a mechanic due to burning pain in his shoulder and back (these disorders are not service connected). An August 2008 psychiatric examination reflects that the Veteran worked as a diesel mechanic until he quit after receiving "racial notes." (VBMS, 9/5/08, p. 17-20). A March 2009 treatment report reflects that the Veteran lost his work-study job due to legal problems (involving an altercation with his wife) (VBMS, 4/16/09, p. 3). An April 2009 VA examination of the peripheral nerves reflects that the Veteran was a student at Portland Community College where he was pursuing a degree in business. He was able to perform activities of daily living. Additionally, he was provided with a computer program (Dragon Natural Speaking) from vocational rehabilitation, in order to minimize the amount of typing needed for school. The examiner opined that the Veteran would have moderate weakness, moderate fatigability, and moderate loss of coordination secondary to painful flare-ups episodes of his bilateral wrists. She stated that the Veteran's home life is mildly affected, and so is his school life, as he is able to adapt adequately. At an August 2009 DRO hearing, the Veteran testified that it is extremely difficult to walk due to the severe blistering on his feet. He stated that when they pop, blood and pus come out. He indicated that he deals with this constantly and that it "takes a lot of the freedom that [he] had before." He also stated that his CTS results in complete numbness in his fingers and arms. He stated that he loses all strength in his hands and cannot hold 20-30 pounds for any kind of time. He stated that he cannot do any kind of physical work; and he cannot type. He testified that he uses voice recognition software for school. He stated that he has been unwilling to drive since an incident in which he lost all feelings in his hands while driving and he had to pull over. He stated that he pays a friend $200 per month to drive him places. The Veteran submitted an August 2009 lay statement from a friend (B.S.). She stated that she had to pick the Veteran up after he called to say that he lost feeling in both hands and that he was unable to continue driving. She stated that it seems as if his hands are either in pain or are numb. She indicated that she drives the Veteran four times a week when the Veteran is unable to drive. The Veteran underwent several VA examinations in November 2009. An examiner provided an opinion that although CTS is the most accurate diagnosis of the Veteran's disability, the clinical picture seems more complicated than CTS. The examiner stated that the symptoms are moderately to severely affecting the Veteran's day to day life. The Veteran underwent a November 2009 psychiatric examination. The Veteran's level of impairment was mild per the Veteran's report. In this regard, the examiner noted that the Veteran was able to make progress in his school program, engaged in social activities and enjoyed spending time with his children. Additionally, a VA foot examination report reflects that the Veteran had constant pain in his feet with pain getting out of bed in the morning. The examiner stated that the Veteran's activities of daily living were unaffected; however, his schooling was mildly affected, in that he has to walk from class to class, and at times, he will be standing on his feet for prolonged periods of time. An August 2010 VA skin examination reflects that performing "any task with his hands is getting to be difficult now such as holding a steering wheel." Additionally, the Veteran was "is a significant amount of distress due to pain from these extensive lesions" on his palms and the plantar surfaces of his feet. The examiner stated that the skin disability was severely disabling at the time, but with appropriate treatment, the condition may improve and may even possibly resolve. On a November 2016 VA Form 21-8940, the Veteran indicated that he had completed high school and 2 years of college. He reported working from November 2004 to May 2008 as a diesel mechanic and that his depression, bilateral knees, bilateral feet, and bilateral wrists prevented him from securing gainful employment. He indicated additional training at a college after becoming too disabled to work. He additionally noted that a vocational rehabilitation counselor suggested he apply for TDIU as he was denied enrollment into that program. Analysis Effective December 12, 2005 - August 18, 2010 Effective December 12, 2005, the Veteran was service connected for CTS of the left wrist, evaluated as 30 percent disabling; CTS of the right wrist, evaluated as 20 percent disabling; patellar tendonitis of the right knee, evaluated as 10 percent disabling; patellar tendonitis of the left knee, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; pseudofolliculitis barbae, evaluated as 10 percent disabling; and dermatitis of both hands and feet, evaluated as 10 percent disabling. His combined rating was therefore 70 percent. See 38 C.F.R. § 4.25. Effective February 27, 2009, the Veteran became service connected for bilateral plantar fasciitis, traverse metatarsal arch drop with callus formation, evaluated as 10 percent disabling. His combined rating did not change. The Veteran did not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a), to include with consideration of combined disabilities. However, the Board must still determine whether the Veteran's service-connected disabilities result in impairment so severe that it was impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of the impairment due to service-connected disabilities. Following a full and thorough review of the relevant medical and lay evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU prior to August 18, 2010. The evidence reflects that the Veteran was, in fact, working until March 2008. He had not lost any time from work due to CTS (his highest rated disability at that time). Examination reports dated March 2008 and August 2008 include alternate rationales for why the Veteran stopped working. In one report, it was suggested that he needed to stop working as a mechanic due to burning pain in his shoulder and back (two nonservice-connected disabilities). In the other, it was stated that the Veteran quit his job as a mechanic after receiving "racial notes." In either case, the lack of employment was not due to his service-connected disabilities. Indeed, he became a student where he pursued a degree in business. An April 2009 VA examination report reflects that the Veteran would have moderate weakness, moderate fatigability, and moderate loss of coordination secondary to painful flare-ups episodes of his bilateral wrists. In this regard, the examiner stated that the Veteran's home life was mildly affected, and so was his school life, as he was able to adapt adequately. The Board finds the foregoing evidence deserves weight as the examiners' noted the Veteran's pertinent medical and educational history, performed physical examinations of the Veteran, and assessed his level of functional impairment due to his service-connected disability(is) under examination. The Board finds that the above evidence weighs against a finding that the Veteran's service-connected disabilities alone rendered him unable to obtain and retain substantially gainful employment, nor is the evidence in a state of equipoise on that question. As such, the Veteran's claim for a TDIU prior to August 19, 2016 is denied. Effective August 19, 2010 Effective August 19, 2010, the Veteran was service connected for CTS of the left wrist, evaluated as 30 percent disabling; CTS of the right wrist, evaluated as 20 percent disabling; patellar tendonitis of the right knee, evaluated as 10 percent disabling; patellar tendonitis of the left knee, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; pseudofolliculitis barbae, evaluated as 10 percent disabling; dermatitis of both hands and feet, evaluated as 10 percent disabling; and bilateral plantar fasciitis, traverse metatarsal arch drop with callus formation, evaluated as 10 percent disabling for each foot, and major depressive disorder, evaluated as 10 percent disabling. His combined rating was therefore 80 percent. See 38 C.F.R. § 4.25. The Board finds that the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities, as his disabilities of the lower bilateral lower extremities (bilateral knees, bilateral feet, dermatitis of the bilateral feet) combine for a 40 percent rating under § 4.25. See 38 C.F.R. § 4.16(a) (stating that for the purpose of one 40 percent disability, the following, to include disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability). However, as before, the Board must still determine whether the Veteran's service-connected disabilities resulted in impairment so severe that it was impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. The August 2010 VA examiner stated that "performing any task with his hands is getting to be difficult now such as holding a steering wheel." Additionally, the Veteran was "in a significant amount of distress due to pain from these extensive lesions" on his palms and the plantar surfaces of his feet. The Board finds that the Veteran's disabilities to his hands would prevent him from working with the tools necessary to maintain employment as a mechanic. Moreover, even sedentary employment would likely involve using his hands (writing, typing, driving, etc.) that the examiner opined would be difficult. In giving the benefit of the doubt to the Veteran, the Board finds that entitlement to TDIU is warranted effective August 19, 2010 as the impairment from his service-connected disabiliites would render him unable to secure or follow a substantially gainful occupation. Effective April 23, 2014 - March 13, 2016 A December 2015 Report of Incarceration (VA Form 27-0820e) reflects that the Veteran was convicted of a felony, and became incarcerated on April 23, 2014. He had a projected release date of March 13, 2016. In this regard, the Board notes that VA shall not assign to any veteran a TDIU rating during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony. 38 U.S.C. § 5313(c). The primary legislative purpose for this limitation is "to prevent duplication of governmental expenditures benefiting incarcerated persons in receipt of veterans' compensations." VAOPGCPREC 5-2006 (Aug. 11, 2006) (noting that interpretation of Section 5313 to result in double governmental expenditures would "thwart Congress' clear purpose for the reduction in benefit payments"). Therefore, the assignment of a TDIU from April 23, 2014 to March 13, 2016 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (finding that where the law is dispositive, the claim must be denied due to an absence of legal entitlement). March 14, 2016 - November 24, 2016 The Board finds that the Veteran's disabilities upon which TDIU was granted, did not improve during the Veteran's incarceration. Moreover, effective August 22, 2016, the Veteran's depressive disorder (previously rated as 10 percent disabling) increased to 50 percent disabling. Consequently, the Board finds that following his incarceration, the Veteran remained unemployable do to service-connected disabilities. Effective November 25, 2016 Effective November 25, 2016, the Veteran's disabilities are rated with a combined evaluation of 100 percent. A 100 percent schedular rating is a higher benefit than TDIU; thus, in general, when a 100 percent rating has been granted, a TDIU claim is moot. This is not universally true, however, as recognized by the Court in Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In that case, the Court held that if the evidence supported a finding of TDIU based solely upon a single service-connected disability, then such a TDIU rating may serve as the factual predicate for an award of special monthly compensation pursuant to 38 U.S.C. § 1114(s). As discussed above, the Board finds that it is the collective impact of the Veteran's service-connected disabilities, to include his major depressive disorder, bilateral CTS, and skins disabilities. There is no single service-connected to satisfy the statutory requirement of a total rating. As such, in this instance, the 100 percent schedular evaluation moots the TDIU claim from November 25, 2016 forward. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU post-July 1989 moot where 100% schedular rating was awarded in July 1989); see also Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) ("claim for TDIU presupposes that the rating for the condition is less than 100%"). Accordingly, the claim for TDIU from November 25, 2016 forward, must be dismissed as a matter of law. Sabonis, 6 Vet. App. at 430. ORDER A TDIU from December 12, 2005 through August 18, 2010 and from April 23, 2014 through March 13, 2016 is denied. A TDIU from August 19, 2010 through April 22, 2014 and from March 14, 2016 through November 24, 2016 is granted. Effective November 25, 2016, TDIU is moot. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs