Citation Nr: 1753579	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  10-36 306	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to a total disability rating on the basis of individual unemployability due to service connected disabilities (TDIU). 

REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1973 to October 1977.

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a
September 2008 rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in Pittsburgh, Pennsylvania.

The Veteran was scheduled for a Travel Board hearing in June 2011, however he did not appear. Under the applicable regulation if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn 38 C F R § 20 702 (d) (2011). Accordingly, this Veteran's request for hearing is considered withdrawn.

The Board remanded this matter for further development in September 2016.

Subsequently to the Board's 2016 remand, in February 2017, the RO granted an increased disability rating for the Veteran's service-connected internal derangement, right knee, with degenerative changes, an issue that had been on appeal to the Board. In an August 2017 appeal status election form, the Veteran indicated that his increased disability rating for his service-connected knee disability was satisfactory. Therefore, the Board finds that the Veteran's increased disability rating as a full grant of benefits and is no longer before the Board. 


FINDING OF FACT

The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment for which he would otherwise be qualified.


CONCLUSION OF LAW

The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this decision, the Board is granting the claim being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).

II. TDIU

VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 

The central inquiry for the Board 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). Consideration is given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§  3.341, 4.16, 4.19 (2017).

The regulations provide that if there is only one service-connected disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Id.

The Veteran currently has the following service-connected disabilities: ganglion cyst of the right lateral ankle associated with derangement, right knee, with degenerative changes, evaluated at 30 percent disabling from May 2013; internal derangement of the right knee with degenerative changes, evaluated at 20 disabling from October 2007; degenerative arthritis of the lumbar spine associated with internal derangement of the right knee, evaluated at 20 percent disabling from May 2013; left lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine, evaluated at 20 percent disabling from March 2015; right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine, evaluated at 20 percent from March 2015; gastroesophageal reflux disease (GERD) associated with internal derangement of the right knee, evaluated at 10 percent from May 2013; right hip degenerative arthritis associated with internal derangement of the right knee, evaluated at 10 percent disabling from March 2015; patellofemoral syndrome of the left knee with degenerative arthritis associated with derangement of the right knee, evaluated at 10 percent disabling from March 2015; and degenerative join disease of the right knee associated with internal derangement of the right knee, evaluated at 10 percent disabling from January 2016. The Veteran has a combined disability rating of 90 percent as of January 2016 and has a combined disability rating of 80 percent in March 2015.  He had a combined disability of 60 percent from May 2013.

Initially, the Board finds that Veteran meets the minimum qualifications for a schedular TDIU from May 2013. The Veteran does not have a single service-connected disability that is rated above 60 percent disabling. The Veteran does a have a combined disability rating above 70 percent disabling from March 2015. The Veteran does not a single service-connected disability rated above 40 percent disabling. However, for the purpose of meeting the qualifications for schedular TDIU by applying 38 C.F.R. § 4.16 (a) (3), the Board finds that the Veteran's service-connected orthopedic disabilities are considered one disability. The Board finds after applying Table I under 38 C.F.R. § 4.25 (a) the disability evaluation assigned the Veteran's orthopedic disabilities are at least 60 percent combined effective from May 13, 2015.  Therefore, the Veteran meets the minimum qualifications for a schedular TDIU from the date.  Prior to May 13, 2013, the Veteran's combined disability evaluation was 30 percent and the record indicates that he was gainfully employed through July 2014.  Thus, he is not eligible for a TDIU prior to July 2014. 

The record indicates that the Veteran lasted worked in July 2014 as a dam monitor for the Army Core of Engineers. Prior to his work with Army Core of Engineers the Veteran was a pipe fitter for 15 years. The Veteran has an associate's degree in petroleum technology and a bachelor's degree in business. Information from the Veteran's former pipefitter employer indicates that the Veteran worked for them for 15 years until January 2014 when he was laid off due a lack of work. The evidence shows that the Veteran's employment with the Army Corps of Engineers ended on July 1, 2014 because of a 1-year appointment.

In November 2014, the Veteran had a private neuropsychological evaluation. The psychologist noted that the Veteran's chronic pain symptoms and current medications (e.g. morphine) are well known to influence cognitive efficiency and are to be considered contributing factors in the Veteran's cognitive difficulties he reported in his daily life. 

VA vocational rehabilitation records dated in January 2015 indicate that it was not medically feasible for the Veteran to participate in a plan of vocational services or work at that time.  In the accompanying vocational assessment report, it was noted that the Veteran's cognitive impairments in combination with his physical impairments diminish his employability. It was noted further that his education, training, and work activities did not mitigate the vocational impact of the Veteran's residual impairments. The examiner concluded that though the Veteran presents with a work history in skilled occupations and post-secondary degrees, it was his opinion within a reasonable degree of vocational rehabilitative certainty that the Veteran was unable to obtain or sustain full or part-time competitive employment due to a combination of his cognitive, behavioral, psychological and physical impairments including chronic pain.

In a February 2016 VA examination of the Veteran's spine, the examiner opined that the Veteran's back disability affected his ability to work. The examiner stated that the Veteran cannot bend, stoop, squat or lift more than 10 pounds. The examiner stated that any job related to these actions would be limited.  In the examination the Veteran reported that the pain in his back caused him to lose focus and make mistakes. The Veteran stated that he believed he was not renewed as a dam monitor because of his physical limitations and mental mistakes. The Veteran also had lower leg and hip VA examinations in February 2016. Both of these examinations noted that the Veteran's service-connected disabilities limited his ability to work in physical labor.

The Social Security Administration found the Veteran entitled to benefits from July 1, 2014 based on a primary disorder of the back and secondarily based on organic mental disorders. The associated records indicate that the Veteran was of advanced age for SSA purposes and had no direct transferable skills for future employment.

The Veteran's VA orthopedic surgeon noted in August 2016 that the Veteran is unable to work due to multiple issues including back/spine pain, for which he received nerve blocks; right hip pain due to arthritis, for which he reviewed hip injections under x-ray; and bilateral knee pain due to arthritis, which causes falls and inability to walk any distance, for which he also received injections. 

In a November 2016 VA knee examination, the examiner opined that the Veteran could not be a candidate for employment which required running, prolonged walking, squatting, kneeling and/or climbing. 

In October 2016, the Veteran stated that it was impossible for him to work because of the side effects of his medication. 

The Board finds that the medical and lay evidence demonstrates that the Veteran's service-connected disabilities cause significant functional and occupational impairment in most job assignments. His service-connected disabilities preclude him from working in a job that required physical labor. Further, the Board finds that the Veteran would be unable to work in a sedentary job due to the Veteran's pain medication and the affect it has on his cognitive ability. Thus Board finds that the Veteran's service-connected disabilities are of sufficient severity to preclude him from obtaining or retaining gainful employment. A TDIU is granted from July 1, 2014, the date the record indicates that the Veteran was last employed on a full-time basis. 38 C.F.R. § 4.12, 4.16(a).


ORDER

Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs