Citation Nr: 1752728 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 07-38 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel INTRODUCTION The Veteran in the Air Force from December 2000 to November 2003, during the Gulf War Era. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran now resides in Georgia, so the matter is now handled by the RO in Atlanta, Georgia. In November 2012, the Board found that TDIU had been raised by the record and referred the claim to the RO for further evidentiary development. In January 2014, a letter was sent to the Veteran informing her of what was needed to help substantiate her claim of entitlement to TDIU. A SSOC was issued in October 2015 adjudicating the claim on appeal. The Board finds that the RO has substantially complied with the previous remand direction. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not argued otherwise. FINDINGS OF FACT 1. The Veteran's current service-connected disabilities include adjustment disorder with mixed anxiety and depressed mood, now claimed as sleep disturbances secondary to back condition rated as 70 percent disabling; right lower extremity radiculopathy, rated as 20 percent disabling; chronic lumbar strain with mild disc disease, rated as 20 percent; migraines, rated at 30 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. The Veteran's combined service-connected disability rating met the schedular criteria for a TDIU effective July 27, 2015. preclude her substantially gainful employment effective July 27, 2015, but not before. 2. The competent evidence of record demonstrates that whether the Veteran is unable to secure and maintain substantially gainful employment as a result of his various service-connected disabilities is at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a TDIU from July 27, 2015, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.341, 4.1, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 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) (2017). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. II. TDIU The Veteran contends that he is unable to work due to his various service-connected disabilities, including the symptomatology associated with her adjustment disorder with mixed anxiety and depressed mood, now claimed as sleep disturbances secondary to back disorder. The Board finds that the evidence is in relative equipoise as to whether the Veteran's service-connected disability renders her unable to secure or follow substantially gainful employment and, hence, a TDIU effective July 27, 2015, is warranted. When considering the Veteran's employment and educational background, as well as the medical evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of a TDIU. A veteran may be awarded a TDIU upon a showing that she is unable to secure of follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent disabling or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the veteran's combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to her age or the impairment cause by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran's service-connected disability or disabilities preclude her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995) (citing Beaty v. Brown, 6 Vet. App. 532, 537 1994). In determining whether a veteran is entitled to a TDIU, neither her non-service-connected disabilities nor her age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation, which is consistent with her education and occupation experience. 38 C.F.R. §§ 3.321, 3.340, 4.16 (2017). The Board also notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a) (2016); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran's current service-connected disabilities include adjustment disorder with mixed anxiety and depressed mood, now claimed as sleep disturbances secondary to back condition rated as 70 percent disabling; right lower extremity radiculopathy, rated as 20 percent disabling; chronic lumbar strain with mild disc disease, rated as 20 percent; migraines, rated at 30 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. Her combined rating is 90 percent, effective June 1, 2016. The board notes that Veteran meet the scheduler requirements for TDIU effective July 27, 2015. See 38 C.F.R. § 4.25 (2017). This combined rating satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16 (a) (2017). As noted above, the Veteran first met the schedular criteria for a TDIU effective July 27, 2015, the date that service connection symptomatology associated with her adjustment disorder with mixed anxiety and depressed mood, now claimed as sleep disturbances secondary to back disorder was rated at 60 percent disabling. The Veteran contends that she is entitled to TDIU, as she is unable to work due to her service-connected disabilities. In support of her contentions, the Veteran submitted d a letter in October 2015 detailing how her service-connected disabilities affected her ability to work. In the letter from October 2015, the Veteran noted that she did graduate from high school and did have some vocational training but she did not complete the training. She reported that she was unable to complete vocational training or return to work because of complications from her service-connected disabilities. Specifically, she indicated that her last steady employment, as a bank teller in 2008, ended because the mental disorder that she was diagnosed manifested with ideations of causing harm to those around her in the work place. She also stated her back could not and did not tolerate standing for 30 hours per week, as required. Furthermore, the Veteran reported that the limitations of her service-connected disabilities made it impossible to maintain gainful employment in her usual occupation as a telephone customer service representative. In connection with her claim, the Veteran was afforded multiple VA examinations assessing the functional limitations due to her service-connected disabilities. A July 2015 assessment of the Veteran's lumbar revealed that the Veteran's symptoms were constant sharp pain in lower back, stabbing pain that occurred once every 2-3 months that briefly immobilizes the Veteran; radiating pain to leg all the way down to feet, radiating pain occurs 3-4 times a week, giving away in the low back; tingling sensation in the lower back down to the right leg and foot; sometimes numbness in the right leg and foot; and difficulty with prolonged sitting and standing for more than three hours. Based on this assessment, the examiner found the Veteran's functional impairments from this disability in a physical or sedentary occupational setting as: "In an eight hour work day, the veteran is limited to no repetitive heavy lifting or carrying of greater than 25 pounds; walk 2 miles, stand 4 hour with changes in position every 15 minutes and sitting with changes in position as needed." A February 2016 VA examine noted that the Veteran's lumbar spine disability affected her ability to work in that it impaired activities like standing longer than half an hour; walking longer than half to one mile; sitting longer than one hour, with changes positions every about 15 minutes; driving longer than 2 to 3 hours; climbing up more than 2 flights of stairs; and bending forward, as to tie her shoes, are limited and painful. In a June 2015 mental disorders (other than PTSD and Eating Disorders) VA examination the examiner found the Veteran's active symptoms of her adjustment disorder with mixed anxiety and depressed mood were: depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence. Despite these findings, the examiner did not opine that her adjustment disorder with mixed anxiety and depressed mood rendered her unemployable. The examiner did note that there was occupational and social impairment with reduced reliability and productivity. A VA examination of the Veteran's right lower extremity radiculopathy was obtained in December 2016. Following the examination, the examiner opined that the effect these disabilities had on the Veteran's ability to work was no heavy lifting or carrying of heavy items, and no pushing, pulling, or repetitive bending or twisting. The examiner also noted a limited ability for prolonged standing or ambulation. The record also contains an February 2017 VA examination for headaches including migraine headaches indicating migraine headaches with constant head pain; pulsating or throbbing head pain; pain on both sides of the head; pain worsening with physical activity; nausea; vomiting; and sensitivity to light and sound. The physician indicated that, the Veteran's headache condition impact her ability to work in that she would have missed days from work on days of worsening migraine headaches. The Board finds that, based upon the evidence of record, and giving the Veteran every benefit of the doubt, effective July 27, 2015 her service-connected disabilities rendered her unable to secure or follow substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). As to her physical disabilities, she is significantly limited in her ability to perform vocational activities that involve any sort of physical labor. As the VA examiner noted, the Veteran's disabilities render her unable to perform any occupational activity other than sedentary work, with a number of special accommodations. In addition, the Board finds that, due to the Veteran's experience and education, she would likely be unable to obtain any sort of sedentary position that would allow for her special accommodations. Furthermore, regarding her adjustment disorder with mixed anxiety and depressed mood, the June 2015 VA examination report reflects the opinion that Veteran's adjustment disorder with mixed anxiety and depressed mood, now claimed as sleep disturbances secondary to back condition reduced her reliability and productivity. These opinions are supported by the Veteran's lay statements, indicating significant problems interacting with coworkers and being unable to maintain employment because of her depressive state, which caused her to fail to complete her job duties on multiple occasions. The Board finds that the weight of the evidence favors a grant of the Veteran's claim of entitlement to a TDIU, effective July 27, 2015. The Board finds that an effective date prior to July 2015, is not warranted. The Veteran had a combined evaluation for compensation of 60 percent, prior to July 2015 but the highest single rating was 50 percent; thus, the schedular criteria for a TDIU prior to the date were not met. ORDER Total disability rating based on individual unemployability (TDIU), is granted, effective July 27, 2015. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs