Citation Nr: 1751797 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 06-04 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from January 1973 to January 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, denied entitlement to a TDIU. The Veteran timely appealed the denial of the TDIU. In March 2013, the Board issued a decision in this appeal, denying entitlement to a TDIU. The Veteran appealed this decision to the Court of Appeals for Veterans Claims Court (Court) and in September 2013, the Court granted a Joint Motion for Remand (JMR) filed by the parties, vacating and remanding the Board's March 2013 decision. The appeal was returned to the Board for further action on the claim. The Board remanded the claim in January 2009, June 2010, May 2011, August 2012, May 2014, February 2016, December 2016, and July 2017 for further development. FINDING OF FACT The Veteran's service-connected disabilities prevent him from securing or following substantially gainfully employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.7, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017). Given the favorable actions taken below concerning the claim for entitlement to a TDIU, the Board will not discuss further whether those duties have been accomplished. II. Analysis Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. A veteran who has service-connected disabilities that do not meet the requirements of 38 C.F.R. § 4.16 (a), however, may still be considered for a TDIU rating under 38 C.F.R. § 4.16 (b) if unemployable by reason of service connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a). Preliminarily, the Veteran is service-connected for an acquired psychiatric disorder to include adjustment disorder with anxiety associated with chronic low back strain, rated as 50 percent; nerve impairment, right lower extremity associated with chronic low back strain, rated as 40 percent; chronic low back strain, rated as 20 percent; and nerve impairment left lower extremity associated with chronic low back strain, rated as 20 percent. The Veteran's multiple service-connected disabilities have a combined rating of 80 percent from April 27, 2017. The Board notes that at the time the Veteran filed a claim for entitlement to a TDIU, he did not meet the requirement for TDIU consideration under 38 C.F.R. § 4.16(a); therefore, in past decisions, entitlement to this benefit was considered under 38 C.F.R. § 4.16(b). As the Board cannot grant TDIU under 38 C.F.R. § 4.16(b) in the first instance, in July 2017 it remanded this matter for referral to the Director of Compensation for consideration of a TDIU under 38 C.F.R. § 4.16(b). Although a Decision Review Officer (DRO) memo recommended granting a TDIU pursuant to 38 C.F.R. § 4.16(b), the Director denied entitlement to this benefit. The Director's decision is neither evidence nor binding on the Board, and the Board review of the Director's decision is on a de novo basis in these circumstances. Cf. Wages v. McDonald, 27 Vet. App. 233, 239 (2014) (stating in the context of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) that "[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence" and holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). As the Board is granting a TDIU for the entire appeal period, there is no basis for bifurcating the matter based on the periods during which the Veteran met and did not meet the schedular requirements of 38 C.F.R. § 4.16(a). Turning to the evidence of record, during his March 2001 and December 2005 VA examinations, the Veteran reported that he had not worked due to his lower back pain. He further reported that he was unable to walk or stand for long periods of time. In a November 2004 statement, the Veteran reported that he was unable to find a job due to his service-connected back disability. In his July 2010 application for increased compensation based on unemployability, the Veteran reported that he had a high school education, was a former letter carrier, and stopped working in 1995 due to his disability. The Veteran underwent an August 2010 VA examination where he continued to complain of pain and reported that pain would affect his ability to do a job. In an addendum opinion provided in June 2011, the examiner opined that the Veteran's back disability likely limited him from being able to stand more than four to six hours a day or carry objects more than 10 pounds, but did not limit him from performing a seated occupation or standing intermittently. The September 2012 VA examiner agreed that the Veteran could obtain and sustain gainful employment in a sedentary job but was highly unlikely to be able to perform any physical labor. In a September 2013 VA examination report, the examiner noted that the Veteran's pain from his spine condition impacted his ability to work. In a June 2014 VA examination report, the examiner clarified that the Veteran would be limited in manual labor jobs as he was unable to perform lifting, bending, squatting, and twisting activities. The examiner opined that it was less likely than not that the Veteran could find sustainable employment given his physical impairments and educational status. Notably, the examiner reported that the Veteran was limited to sedentary work only but given his educational background and job skills, it was very unlikely that the Veteran could find sustained sedentary work. In a December 2014 VA examination report, the examiner reported that the Veteran was unable to walk or stand for long periods, used a can regularly, and his condition impacted his ability to work. He found that sedentary work was most appropriate. In April 2016, the Veteran underwent an additional VA examination where he reported that he tried multiple temporary type of positions (such as warehouse and manual labor) however, he was unable to continue manual labor work secondary to his chronic lower back pain. He further reported that his back disability decreased his ability to bend over, perform prolonged walking, and sitting type activities. He also reported pain when performing twisting and lifting type movements. The examiner opined that the Veteran was likely unable to perform manual labor type activities such as moderate and repetitive lifting, bending over, squatting based on pain during examination. The examiner found that it was likely that the Veteran would be able to perform sedentary type work if such work was available. The examiner provided an addendum opinion in February 2017 where he reported that the Veteran was able to perform jobs requiring exertion of up to 10 to15 pounds of force occasionally and/or up to 10 pounds of force frequently to push, pull, or move objects. The examiner stated that sedentary work involving sitting most of the time, but may involve walking or standing for brief periods of time, is appropriate. He stated that jobs that require sitting most of the time but entails pushing and/or pulling of arm or leg controls was also appropriate. Finally, the examiner found that jobs requiring prolonged walking, standing/walking at a production rate pace entailing the constant pushing and/or pulling of materials, or exerting greater than 20 pounds of force occasionally and/or frequently is not appropriate for the Veteran's condition. Upon review of the evidence of record, the Board finds that a TDIU is warranted. The Veteran's record indicates that he has a high school degree. The Veteran reported that he is unable to sustain gainful employment due to his physical limitations. He specifically reported difficulties with bending, twisting, and sitting type activities. These statements are competent and credible and consistent with the other evidence of record. In this regard, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Furthermore, the Veteran's record contains numerous opinions regarding the Veteran's service-connected disabilities impacting his ability to work. Most notably, the July 2014 VA examiner noted that although the Veteran was limited to sedentary work, his educational background and job skills made it very unlikely that the Veteran could find sustained sedentary work. The examiner opined that it was less likely than not that the Veteran could find sustainable employment given his physical impairments and educational status. As noted by the February 2017 examiner, the Veteran could only perform sedentary work under very limited circumstances. In any event, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). That evidence shows that the Veteran has a limited employment and educational history and his service connected disabilities have caused significant impairment throughout the appeal period that would make it unlikely he could find the type of employment for which he would be qualified. Based on the medical examinations and opinions, the Veteran's statements, his educational and occupational history, and the other evidence, the Board finds that the Veteran has been unemployable due to his service-connected disabilities throughout the appeal period. Therefore, entitlement to a TDIU is warranted. ORDER Entitlement to a TDIU is granted for the entire appeal period, subject to the regulations governing the award of monetary benefits. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs