Citation Nr: 1751491 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 07-09 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to November 1993. In a September 2014 decision that addressed claims on appeal from prior rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, the Board found that the issue of entitlement to a TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU issue was remanded for further development in September 2014 and March 2017. FINDING OF FACT The Veteran meets the schedular criteria for TDIU and service-connected disabilities prevent him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran contends he has been unemployable due to his service-connected disabilities since August 2013. Since August 2013, the Veteran's service-connected disabilities are total right knee replacement rated as 30 percent disabling May 1, 2009, and 60 percent disabling from September 17, 2015; major depressive disorder and PTSD, rated as 30 percent from May 29, 2007, 50 percent disabling from March 25, 2014, and as 70 percent disabling from September 17, 2015; traumatic arthritis, right knee with limitation of extension rated as 20 percent from August 4, 2010 to September 17, 2015; tinnitus, rated as 10 percent from November 25, 1993; tender scar due to left hand fracture, rated as 10 percent from November 25, 1993; traumatic arthritis, right knee with limitation of flexion, rated as 10 percent from May 1, 2009 to September 17, 2015; residuals of left hand and thumb injury, rated as 0 percent from November 25, 1993; and high frequency hearing loss, left ear, rated as 0 percent from November 25, 1993. His combined rating is 80 percent from August 4, 2010 and 90 percent from September 17, 2015. Therefore, the schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a) is met from August 2013. The remaining inquiry is whether the Veteran is unable to follow a substantially gainful occupation as a result of his service-connected disabilities. 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 (1993). Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is based on an individual's particular circumstances. Rice, 22 Vet. App. at 452. Therefore, the Board must take into account the Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet.App. 164 (1991); Friscia v. Brown, 7 Vet.App. 294 (1994). On his September 2015 VA Form 21-8940 application for TDIU, the Veteran reported that he had last worked full-time in August 2013, and he became too disabled to work in September 2013. The Veteran specifically cited his right knee replacement, "legs condition," PTSD and hip replacement as the service-connected disabilities that affected employability. He reported completing two years of community college and a six-month nurse aid program. He reported working as a press operator at a tobacco company from June 2005 to May 2007, as owner of a restaurant from May 2008 to August 2008, as the manager of a travel center from April 2010 to June 2010, as the lead man for a leaf service company from June 2010 to April 2012, and as a line worker for a chemical company from April 2012 to August 2013. On June 2014 VA mental disorders examination, the Veteran reported that he had four or five jobs since 2008, and lost his last job in September 2013. He described that he felt like he was discriminated against due to being on medication and that he was harassed by his supervisor at that job. He described that he also had hit another employee when they came up behind him unexpectedly. The Veteran reported that he had begun taking college classes in business administration and stated his goal is "to get a job [he] can keep and that won't hurt him physically." The examiner found the Veteran had irritable behavior or angry outbursts, hypervigilance, exaggerated startle response, and sleep disturbance. The Veteran reported that he "blows up a lot" with physical altercations, especially when he feels threatened and that he "can't deal with people." The examiner opined that the Veteran's mental diagnoses resulted in occupational and social impairment with reduced reliability and productivity. On October 2015 VA examination, the Veteran reported difficulty walking due to his service-connected right knee. The examiner noted the Veteran constantly used a cane to walk. The examiner opined that the Veteran's service-connected right knee impacted his ability to perform occupational tasks because he had difficulty with prolonged walking, standing, or lifting. The examiner opined the Veteran's service-connected left hand scar had no impact on his ability to work and his service-connected residuals of a left hand and thumb injury had no impact on his ability to perform any type of occupational task. The examiner also noted his hand was fully functional and his scars would have no impact on employment. On March 2016 VA PTSD examination, the Veteran reported that he remained out of work since the June 2014 examination. He described that at his last job in 2013 at a chemical plant he had a couple of accidents where he spilled acid due to his knees buckling. He also reported that the company's human resources questioned his health issues, need for medication, and whether he needed to miss work for appointments. The Veteran reported that they mutually agreed that he would not work there any longer. The examiner found the Veteran had irritable behavior or angry outbursts, hypervigilance, exaggerated startle response, and sleep disturbance. The examiner opined that the Veteran's mental diagnoses resulted in occupational and social impairment with reduced reliability and productivity. The examiner also noted that the Veteran's occupational history suggested "that the Veteran's primary difficulty in the workplace had been of a physical nature rather than due to mental health issues. It is noted that the Veteran's PTSD/depression does cause some difficulty with interaction with other individuals. An occupation requiring close contact and frequent interaction with other people could be difficult for him, though there are numerous jobs available that do not require such high exposure to, or interaction with, other people. From a mental health standpoint, the Veteran should be able to function adequately in such positions. Also [the] examiner notes that just because the Veteran tends to isolate himself and does not trust others much, this does not mean he cannot work with other people in the vicinity." On April 2017 VA hearing loss and tinnitus examination, the Veteran also reported that his tinnitus had no adverse effects on his daily life. The examiner opined that while it could be annoying and distracting at times, his tinnitus should not prevent him from functioning satisfactorily in most work environments. Regarding his left ear hearing loss, the Veteran reported that his hearing loss impacts his ability to work because sometimes his hearing is "foggy and [he] has to get used to watching peoples' lips to understand them." The examiner found that his hearing loss should not prevent him from functioning satisfactorily in most work environments. The examiner noted that "people with this type, degree, and configuration of hearing loss will usually function well in a work environment that does not rely on rapid, accurate exchange of aural/oral information. With appropriate amplification and/or work place modifications such as an amplified phone, repositioning to reduce background noise, and employment of communication techniques such as watching the speaker's face, his hearing loss should not prevent the Veteran from functioning satisfactorily in most work environments." On April 2017 VA PTSD examination, the Veteran reported that he earned a degree from a community college in business management and restaurant in 2003, and had earned trade certifications as a nursing aide and in welding. The examiner noted that the Veteran had not worked since 2013 when he left his job following physical altercations with his coworker. She also noted that the Veteran had a stable work history prior to that incident, but he reported that his anger, irritability and difficulty getting along with his coworkers and supervisors had a negative impact on his job performance and ultimately resulted in termination in several instances. The Veteran described difficulty in the past interacting with others due to irritability and anger, specifically his former coworkers and supervisors. The examiner found that several functional impairments related to his service-connected PTSD and depressive disorder affected his employment. The examiner noted the Veteran's irritability/anger and mistrust of others likely to cause at least a moderate impairment in his ability to sustain effective work relationships; his chronic sleep problems and depressed mood were likely to cause mild to moderate impairment in his ability to complete tasks, attend work regularly and on time, and sustain work productivity; and his intrusive thoughts, exaggerated startle response, and distress when exposed to situational cause likely to cause at least moderate impairment in his ability to respond to stressful situations and successfully complete tasks. The examiner did also note "his symptoms would likely be less impairing in the context of a job requiring little to no interaction with others." On April 2017 VA compensation and pension examination, the examiner addressed the impact on the Veteran's employability of his service-connected right knee, left hand and thumb injury, left hand scar, and by all his service-connected disabilities combined. The examiner opined that the Veteran's service-connected scars of left hand "alone do not limited physical or sedentary employment in any way, it causes no limitation of the thumb/hand in movement or function." Regarding the Veteran's right knee, limitation on employment including limited used of the knee, avoidance of kneeling, squatting, twisting, jumping, climbing, prolonged standing and walking. The examiner noted that prolonged sitting should be avoided because of potential for increased swelling of the lower extremity, and work accommodations would include the use of assistive devices for ambulation, frequent rest periods, and specifically in sedentary positions the ability for the Veteran to change positions regularly so to move the right knee to prevent stiffness. The examiner also noted "that the Veteran worked for several years off and on following his right knee replacement in 2008." Regarding his left hand/thumb injury, the examiner noted the Veteran is right-handed so he only has minimal limitations due to his left hand as he reported that he continues to perform activities that require the left hand such as cooking, house work, and pushing a lawn mower. The examiner found that limitations due to his left hand include primarily is lifting, pushing or pulling more than 10-15 pounds with left hand. He could still perform computer skills, and this may be aided by alternatives to a standard keyboard, such as speech recognition software or one handed keyboards, although, the examiner noted he would need to take short breaks to reduce frequency and length of pain. The examiner noted he could also perform desk type work such as answering the phone, filing, sorting, etc., without interference. The April 2017 examiner opined that regarding "the combined functional and occupational impact of all of his service-connected disabilities combined is that he could participate in employment positions that he has little to no interaction with others, where he is not required to stand/walk, knee, squat, climb, or push/pull/lift more than 10-15 pounds, and where he could take breaks periodically for stretching of his right knee and resting of his left hand; based on his education (associates degree in business/management) and his previous work experience he has transferrable skills that can be modified and he is trainable, so that his skills could be adapted and utilized in positions such as home based computer type work such as medical transcription, billing coder, data entry or low impact tasks such as stuffing envelopes, simple home assembly jobs, etc." In a July 2017 letter, the Veteran's wife reported that he is in pain daily and when he tries to do household tasks he "suffers for days." She described that he takes over 10 different medications, including 4 for pain, which make him drowsy and "out of it," and prevents him from being able to hold down a job. She also reported that the Veteran could barely walk without being in pain, and his physical problems make his depression even worse. She described that his PTSD has caused sleep problems, including vivid dreams and being violent in his sleep, as well as trust issues. Based on a review of the record, the Board finds that entitlement to TDIU is warranted. The April 2017 examiner opined that the Veteran could work in a position with little to no interaction with others, physical limitations and with accommodations for periodic rest breaks he has transferable skills and could be retrained. Nevertheless, it is the role of the Board, not a medical examiner, to assess the Veteran's ability to secure and follow substantially gainful employment. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran's work history is mostly physical; as a press operator at a tobacco company, for a leaf service company and as a line working for a chemical company. Medical examinations include references to poor interactions with co-workers and the need to work alone as a result of depressive disorder and difficulty with prolonged sitting and standing or lifting as a result of his right knee disability. The Veteran told an examiner that he lost his job at the chemical plant because of accidents he caused with his knee buckled. The Veteran's wife stated that the Veteran has difficulty with household tasks and his medications make his drowsy and "out of it." She further related that he is in pain, which increases his depression with in turn, interferes with his sleep. Given the Veteran's physical limitations, depression and decreased functional ability, the Board finds that the evidence shows he is entitled to an award of TDIU. ORDER Entitlement to TDIU is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs