Citation Nr: 1756426 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-06 040 ) 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) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1985 to June 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed, including the transcript of the December 2016 Board hearing presided over by the undersigned Veterans Law Judge. FINDINGS OF FACT 1. During the appeal period prior, the Veteran's service-connected disabilities include lumbar spine disability, rated as 60 percent, and major depressive disorder associated with the lumbar spine disability, rated as 30 percent; the total combined rating during the entire appeal period is 90 percent. 3. The Veteran is rendered unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, specifically due to his lumbar spine disability and his major depressive disorder. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met for the entire appeal period prior to November 22, 2014. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the Board is granting the issue regarding TDIU in full, discussion regarding the duties to notify and assist regarding this issue is not necessary. Total disability based on unemployability exists where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets certain schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there are two or more disabilities, at least one disability should be rated at 40 percent or more and the combined evaluation should be 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining if there is one 60 percent disability, multiple disabilities resulting from a common etiology will be considered as one disability. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the appeal period prior, the Veteran's service-connected disabilities include lumbar spine disability, rated as 60 percent, and major depressive disorder associated with the lumbar spine disability, rated as 30 percent; the total combined rating during the entire appeal period is 90 percent. Accordingly, during the entire appeal period for TDIU, the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) are met. The Board finds that the evidence supports a finding that the Veteran is unable to secure or follow a substantially gainful occupation due to a combination of his service-connected psychiatric and lumbar spine disabilities during the appeal period. The Veteran contends, such as in his June 2011 Form 21-8940 that his service-connected lumbar spine disability and psychiatric disability associated therewith preclude employment. The Veteran is competent to report his symptoms and work history, and the Board finds that these reports are credible. The Veteran testified at the December 2016 Board hearing that his work at U.S. Postal Service (USPS) was restricted due to his inability to sit or stand for more than 8 hours a day. He reported that his private physician, Dr. N., said he could not work due to his disability. He also testified that he cannot work with others in a work setting because he gets easily agitated and forgets things. He reported that he has a hard time concentrating on tasks and that he would forget to complete tasks. He also testified that he gets angry easily and has outbursts of anger, perhaps twice a week. He testified that when he was still working with the USPS, he would get up and down every 15 or 30 minutes because of his pain. The Veteran reported, such as his June 2011 Form 21-8940, that he worked for the USPS after service, from 1993 to June 2011, when he stopped working due to his lumbar spine and psychiatric disability. There is no indication that the Veteran has other work experience after service. The USPS records show that the Veteran left USPS due to disability retirement in 2011, and that he had been given limited duties in his employment due to his disabilities. For instance, USPS records show that the Veteran, starting in June 2005, had his position modified. He would have 8 hours spent sitting at the table, and manipulating mail and placing mail properly in trays. In October 2005, his job was modified, so that he would have six hours doing his tasks, with alternate sitting and standing per his physical restrictions. A May 2011 letter from the U.S. Office of Personnel Management (OPM) shows that the Veteran is noted as disabled due to multiple conditions, and that OPM found him disabled for his position in sales, service, and distribution clerk due to his lumbar spine disability with radiculopathy with associated medical conditions [i.e., major depressive disorder associated with the lumbar spine disability]. The medical evidence shows that the Veteran's lumbar spine disability precludes him from physically active occupations, to include USPS occupations that require standing and walking (e.g., window clerk, mail sorter). In a March 2013 VA spine examination, the examiner noted that the Veteran's lumbar spine disability results in increased pain with heavy lifting and with repetitive bending at the waist. On VA examination in August 2011, the examiner noted that the Veteran's lumbar spine disability affects the Veteran's daily activities in that he has pain with prolonged walking and standing. The examiner noted that this would interfere with physical employment requiring the same. The Board acknowledges that there is evidence both for and against a finding that the Veteran is precluded from sedentary work tasks that involve prolonged sitting with some twisting actions. For instance, the March 2013 VA spine examination reflects the examiner's opinion that the Veteran has no restrictions to sedentary work. The August 2011 VA examiner stated the same. In her addendum opinion in January 2012, the August 2011 VA examiner noted that she saw that during his rather extensive general medical examination, the Veteran sat throughout the examination without requiring any changes in position, and he did not require frequent changes in position without expressly discomfort. On the other hand, a December 2011 VA pain clinic note states that the Veteran is not able to perform sedentary work because his disabilities prevent him from sitting for long periods of time without frequently changing positions. Further, in an April 2012 examination by Dr. P. for SSA disability benefits purposes, the Veteran reported that he has trouble with standing for more than 20 to 30 minutes, and that he has to keep shifting positions. He said the same for sitting. He reported that he tried to do various jobs in the post office between 2004 and 2011 but that he was forced to take a disability retirement from the post office due to inability to do any occupations at the post office. Dr. P., after examination, noted that the Veteran does have difficulty with changing from a seated position and going directly to bending without some stretching prior to the movement. She noted that he would be unable to do any heavy lifting, and that he would be unable to sit, stand, or walk, for more than 20 to 30 minutes at a time, and that he is unable to bend, squat, crawl, or climb. Also, in a private treatment record from Dr. N, dated in July 2010 (right before the appeal period), the Veteran reported that he was assigned to a new job position that it has increased his back pain, in that he is now working as a window clerk and the repetitive twisting and bending has increased his pain. He also noted that the long drive to the job increases his pain. Also, in a September 2010 private treatment note from Dr. N., the Veteran reported that his pain continues to be made worse by his work activity, and how driving and bending continues to aggravate the pain, and that he has a hard time sitting and changing positions frequently. Notably, in an August 2007 sick note, Dr. N. stated that the Veteran's restrictions due to his lumbar spine disability are permanent and that he is limited in activities such as sitting more than 2-4 hours, standing more than 2-4 hours, twisting, bending, and stooping. Based on this evidence, the Board resolves doubt in favor of the Veteran and finds that he is precluded from prolonged sitting due to his lumbar spine disability. The medical evidence also shows that the Veteran's psychiatric symptoms impact his ability to work with others and with USPS customers. In a March 2013 VA psychiatric examination, the Veteran reported that he gave up working due to chronic back pain at work which increased his depression and lack of concentration and affected his job. He also reported that he was getting irritable at work due to the pain and could not concentrate. The examiner noted that the Veteran has difficulty in adapting to stressful circumstances, including in a work setting., and that he has difficulty in establishing and maintaining effective work and social relationships. Also, in an October 2010 VA psychiatric examination (prior to the appeal period) with an addendum opinion in July 2011, the Veteran reported irritability, amotivation, and disinterest. He reported that he is angered to the point of wanting to hurt other people, and he indicated that his anger is often directed at his co-workers who "mess with him." He also reported that he has lost 2-3 days per week from work during the last 12 month period due to chronic pain and depression. The VA examiner also noted that the Veteran's problems concentrating are due to distractibility associated with his chronic pain, and the examiner noted that chronic pain impacts his employability and that his pain does exacerbate his depression. Then, in a January 2012 addendum opinion, the examiner noted that the Veteran's treatment records show ongoing irritability, frustration, and mood swings, during which his happy one minute and angry in the next. The examiner opined that the Veteran's chronic pain exacerbates the Veteran's psychiatric symptoms, and that the Veteran has increased frustration and irritability. Based on the above-discussed evidence, the Board finds that the lay and medical evidence shows that during the appeal period, the Veteran's service-connected lumbar spine disability and psychiatric disability render him unable to perform the tasks that are required in work-like setting for an occupation in which he has work experience, namely the various tasks such as sitting, standing, lifting, bending, twisting, and interacting with customers and coworkers, which are required in the various occupations in the USPS as well as similar occupations in sales and distribution. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Because the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, entitlement to a TDIU is warranted. 38 C.F.R. §§ 3.340, 3.341, 4.16. ORDER Entitlement to a TDIU due to service-connected disabilities is granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs