Citation Nr: 1752429 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-18 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel INTRODUCTION The Veteran served on active duty with the Air Force from September 1981 to February 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board in his June 2011 VA Form 9, Substantive Appeal. However, prior to the hearing that was scheduled in May 2012, the Veteran, through his agent, withdrew his hearing request. 38 C.F.R. § 20.704(e) (2017). This case was previously before the Board in September 2014. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). As the Board is granting the benefit sought in its entirety, there is no further need to discuss VA's efforts to comply with the duties to notify and assist. The Veteran seeks entitlement to a TDIU, as he contends he is unemployable due to his service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology or from a single accident are considered to be one disability. Id. The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran has the following compensable service-connected disabilities: sleep apnea, rated at 50 percent; degenerative disc disease of the cervical spine, rated at 30 percent; degenerative disc disease of the lumbar spine, rated at 20 percent; residuals of a left knee injury, postoperative lateral meniscus tear, rated at 10 percent; tinnitus, rated at 10 percent; migraine headaches, rated at 10 percent; degenerative disc disease, cervical spine, neurological manifestations of the right upper extremity with carpal tunnel syndrome and radiculopathy, rated at 10 percent; degenerative disc disease of the cervical spine, neurological manifestations of the left upper extremity with carpal tunnel syndrome and radiculopathy, rated at 10 percent; degenerative disc disease, lumbar spine, neurological manifestations of the right lower extremity with radiculopathy and piriformis syndrome, rated at 10 percent; major depression, rated at 10 percent, and hypertension and scarring residuals of an appendectomy, both rated as noncompensable. The combined rating for the service-connected disabilities has been 90 percent since March 2003 (including the bilateral factors for the bilateral lower extremity disabilities and bilateral upper extremity disabilities). Thus, the schedular requirements for a TDIU rating are met. The question remaining is whether the Veteran's service-connected disabilities (alone) render him incapable of participating in a substantially gainful occupation. The Veteran's September 2009 TDIU claim reflects that he has completed high school. The Veteran has no other education or training. On the TDIU claim form, the Veteran reported being employed as a fire academy instructor until July 2009. He also stated in an attached letter that he intended to be "fully occupied and self-supporting" by the next year. The Veteran worked as a security guard for approximately six months in 2010, but he has not had a steady job since that position. He left the job as a security guard because he could not walk without crutches in the cold weather and was considered a fall risk. The evidence of record is in equipoise as to whether the Veteran's service-connected disabilities render him incapable of participating in a substantially gainful occupation. Following vocational testing in September 2009, the Veteran's case manager noted the Veteran has an employment handicap due to the number and severity of his disabling conditions, his chronic pain, and his lack of education and training for suitable employment. However, the case manager concluded that the achievement of a vocational goal is reasonably feasible, and that he was entitled to vocational rehabilitation and employment services. Notably, the Veteran's Rehabilitation Counselor discontinued the Veteran's program in April 2010 because he had not made contact with the counselor and had not made progress towards completing a vocational goal. On February 2010 VA examination of the Veteran's service-connected orthopedic disabilities, the examiner noted the left knee, cervical spine, and lumbar spine disabilities had a significant effect on his usual occupation as it caused decreased mobility and pain and resulted in him being assigned different duties. The examiner commented that his knee problems prevented him from working on ladders and crawling. The examiner further commented that degenerative disc disease of the cervical spine and lumbar spine caused him to have decreased mobility and problems with lifting and carrying. The examiner noted the Veteran's neck problems prevented him from wearing a helmet, respiratory equipment, and carrying heavy objects, while the back problems affected his ability to handle heavy equipment, carry tanks on his back, and stoop and squat. On February 2010 VA examination of the service-connected neurological impairments of the Veteran's upper and lower extremities, the examiner concluded that motor deficits in the upper and lower extremities would not preclude sedentary employment. Following a March 2010 VA psychological examination, the examiner opined the Veteran does have some difficulty in occupational functioning but this is secondary to physical issues rather than his psychiatric problems. Following a January 2012 private psychological examination, J.A., a licensed psychologist, opined the Veteran is markedly limited in his ability to complete a normal workweek without interruptions from psychologically based symptoms and in the ability to accept instructions and respond appropriately to criticism from supervisors, his mental impairments would cause him to miss more than three days of work per month, and that he would not be capable of performing full time employment. Following the Board remand, the Veteran attended a VA examination in October 2016 for an evaluation of all his service-connected impairments. The VA examiner opined the Veteran's left knee impairment would cause prolonged, continuous weight bearing of greater than four hours to be difficult, and that he must sit and rest for a period before standing again. In addition, the VA examiner opined occupational environments that require high impact activities or prolonged weight bearing would be difficult. In regards to the Veteran's back impairment, the VA examiner opined the Veteran is limited functionally with repetitive twisting, bending, lifting objects from the ground, and performing high impact activities, such as running, jumping, or climbing. In regards to the Veteran's neck impairment, the VA examiner opined the Veteran is limited in performing tasks that require prolonged flexion at his neck, and he cannot turn to look behind. The examiner noted his limitation of rotation impacted him functionally, to include difficulty with driving. In regards to the Veteran's peripheral nerve condition in the bilateral upper extremities, the VA examiner opined the Veteran is limited in performing tasks that require prolonged forceful grip of objects and one handed grip required to maintain position while working with the other hand. In regards to the Veteran's migraine headaches, the VA examiner opined that with the onset of a headache, the Veteran would be precluded from driving or performing most activities until resolution of the migraine in 30 minutes. The VA examiner opined the Veteran's other service-connected disabilities do not impose any occupational limitations. Following a May 2017 VA psychological examination, the examiner stated the Veteran denied any occupational impairment due to his mental health symptoms but reported that the occupational impairment is due to his physical disabilities. The VA examiner opined the Veteran's depression is not severe enough to interfere with occupational and social functioning. The Board gives substantial evidentiary weight to the February 2010 and October 2016 VA examiner's opinions. The February 2010 VA examiner concluded that the Veteran's service-connected lumbar spine, cervical spine, and left knee disabilities would have significant effects on his usual occupation. Moreover, based on the October 2016 VA examination, although individually none of the Veteran's disabilities appear to preclude him from working, resolving the benefit of the doubt in his favor, the Board finds the combined effect of the Veteran's service-connected disabilities would preclude the Veteran from securing or following a substantially gainful occupation. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Based on the foregoing, the Board finds that the overall evidence of record shows the Veteran would have difficulty with most occupations due to his service-connected disability symptoms. Therefore, the Board concludes the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board finds that entitlement to a TDIU is warranted. ORDER Entitlement to a TDIU is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs