Citation Nr: 1756657 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 07-03 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to June 1991, including service in the Southwest Asia Theater of Operations. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. The RO in San Diego, California, has jurisdiction of the Veteran's file. In a June 2016 Board decision, the Board acknowledged that based on Rice v. Shinseki, the issue of entitlement to TDIU was raised by the record as part of underlying increased rating claims related to the lumbar spine and cervical spine. 22 Vet. App. 447 (2009). The Board then remanded the TDIU issue for further development at that time, and then again in June 2017. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board recognizes that additional medical evidence has been received since last readjudication of the Veteran's appeal in September 2017. Nevertheless, the Veteran waived initial RO consideration of such evidence in September 2017. 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. Since January 31, 2007, the Veteran has had a total rating for schizophrenia and an award of special monthly compensation. 2. Prior to January 31, 2007, the Veteran's service-connected disabilities other than schizophrenia did not render the Veteran unemployable. CONCLUSIONS OF LAW 1. For the period since January 31, 2007, the appeal for entitlement to TDIU is moot and the claim is dismissed. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 4.16 (2017). 2. Prior to January 31, 2007, the criteria for a TDIU are not met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. TDIU for the Period Since January 31, 2007 The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Here, an April 2008 rating decision granted the Veteran Special Monthly Compensation (SMC) under 38 U.S.C. § 1114(s), effective January 31, 2007, based on his 100 percent schedular rating for schizophrenia and additional disabilities that are independently rated at 60 percent or more. Accordingly, the grants of a 100 percent rating for the Veteran's service-connected schizophrenia and SMC on account additional disabilities that are independently rated at 60 percent or more render the issue of entitlement to TDIU moot for the period from January 31, 2007. Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). The Board recognizes that in a prior June 2016 Board remand, it was noted that the Veteran may be entitled to SMC 38 U.S.C. § 1114 at the "o" rate if he is found to be entitled to a TDIU due to his lumbar or cervical spine disabilities. However, such is not the case. A grant of TDIU would have no bearing on entitlement to SMC at that rate, as nowhere in the language of Section 1114(o) is there any mention of a total rating. In fact, whereas here, the Veteran is not service connected for hearing or visual impairment, and thus, not suffering from blindness or deafness, and does not have anatomical loss of any of his extremities, 38 U.S.C. § 1114(o) is not at all for application. As a grant of TDIU would have no bearing on entitlement to a higher rate of SMC, the issue of a TDIU is moot. Thus, for the period since January 31, 2007, as there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal of the claim for TDIU is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). II. TDIU Prior to January 31, 2007 Although for the TDIU claim the period since January 31, 2007, is moot, the period prior to January 31, 2007, is not. In this regard, the underlying claims for increased ratings for cervical and lumbar spine disabilities upon which the inferred TDIU claim stems were received on July 22, 2005. Furthermore, prior to January 31, 2007, SMC was not in effect and a grant of a TDIU during that period could result in the award of SMC under 38 U.S.C. § 1114(s). Nevertheless, following a review of the record, the Board finds that a TDIU for the period prior to January 31, 2007, is not warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In determining whether unemployability exists, 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 age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, prior to January 31, 2007, the schedular criteria for a TDIU are met, as the Veteran had a combined 100 percent schedular rating, with a 100 percent schedular rating assigned for schizophrenia, and 10 percent ratings assigned each for lumbar spine, cervical spine, right elbow, left knee, and bilateral foot disabilities. 38 C.F.R. § 4.16(a). However, given the 100 percent schedular rating for schizophrenia, the Board cannot consider schizophrenia in evaluating entitlement to a TDIU, as an award based on such would constitute a "duplicate counting of disabilities." See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). And, following a review of the record, the Board finds that the evidence does not support entitlement to a TDIU during the relevant period prior to January 31, 2007, because the most probative evidence does not show that his service-connected disabilities other than schizophrenia, alone or in combination, rendered him unable to secure or follow substantially gainful employment. The Board acknowledges that the Veteran was unemployed prior to January 31, 2007. However, there is no competent medical evidence to support that the Veteran's service-connected lumbar spine, cervical spine, left knee, right elbow, right foot, and left foot disabilities precluded gainful employment. Parenthetically, the Board points out that service connection for radiculopathy of the bilateral upper and lower extremities was not in effect prior to January 31, 2007, and therefore, will not be considered in evaluating the Veteran's employability. In any event, there is simply no basis in the record upon which to find that the Veteran's service-connected physical disabilities rendered the Veteran unemployable prior to January 31, 2007. The Veteran was afforded VA examinations during and proximate to the period on appeal, including in February 2005, February 2006, and July 2007. Significantly, no VA examiner found that the Veteran's disabilities rendered him unemployable. During the February 2005 VA examination, the Veteran reported pain related to his various joints and stated that he avoided weightbearing, walking for more than 20 minutes, lifting, and carrying with the right arm. However, his gait was normal, there was no loss of motion in the feet or right elbow, and there were no radiologic abnormalities. During the February 2006 spine examination, the Veteran reported mild occasional pain, mild decreased motion, and no flare ups. On examination, he exhibited a normal gait, full motor strength, normal reflexes, and full range of passive motion, and mild limitations in active motion. He reported his course as stable and his response to treatment as good. Significantly, there were no incapacitating episodes, and it was noted that there was no limitation on walking, moderate effects on recreation and sports, and only mild effects on shopping, exercise, and chores. No other effects were noted. More recently, a July 2007 VA spine examiner found minimal effects of the Veteran's cervical spine disability and moderate effects of his lumbar spine disability on the Veteran's ability to obtain and retain employment. That VA examiner also noted mild to moderate effects of the Veteran's right elbow disability, and moderate effects of the Veteran's bilateral knee disability, but the Board points out that the Veteran is only service connected for the left knee. And, as noted elsewhere, including a July 2007 VA aid and attendance examination, the Veteran's right knee pain is more severe than his left, thus likely accounting for more impairment. Such findings of mild to moderate impairment do not support a finding of unemployability due to the spine, knee, and elbow disabilities. Also noteworthy is the Veteran's report during a July 2007 VA psychiatric examination that while his work history involved physical labor, he was unemployed because he was diagnosed with psychosis and was unable to perform his duties, and was therefore "made to resign." That examiner determined the Veteran to be unemployable due to his schizophrenia. Ongoing VA treatment notes dated during or proximate to the relevant period prior January 31, 2007, also document mild or, at worst, moderate symptoms related to service-connected disabilities, as well as complaints related to nonservice-connected physical complaints. For example, in January 2006, the Veteran reported less back pain for the last three to four months and described his neck pain as "slight." His present problem at that time was nonservice-connected shoulder pain, and knee pain. In February 2006, while seeking treatment for radiculopathy (for which service connection was not yet in effect), it was noted the Veteran had "good ROM neck and lumbar spine," and there were no signs of atrophy, weakness, spasms/tenderness, or instability. Just prior or proximate to the appeal period, the Veteran was noted to have a mild cervical strain in July 2004, and in March 2004, while seeking treatment for the left knee, the Veteran reported beginning pain on and off that was mild to moderate. However, he demonstrated full range of motion and there was no instability. Of note, his complaints related more to his nonservice-connected right knee. The foregoing symptoms simply do not suggest unemployability due to service-connected physical disabilities. The Board has considered the Veteran's statements that he has been fired or resigned from jobs, including at the United States Postal Service (USPS), due to his various physical disabilities and, in particular, his back, neck, left knee, and foot disabilities. However, as they apply to his earlier periods of employment prior to January 31, 2007, the Veteran's statements are inconsistent with other evidence and are generally deemed not credible. In this regard, in November 1991, he reported that he left a job with the USPS because of knee problems, and he was in the process of applying for disability. However, during a December 1992 VA social work assessment, he stated that he left his job as a post office clerk because of thought disorganization and "shin splints." At that time, the Veteran was found to have an inability to work or function secondary to symptoms of thought disorder. In March 1993, the Veteran "report[ed] an inability to sustain employment due to symptoms" of racing and disorganized thoughts. However, during a May 1993 VA psychiatric examination, the Veteran again reported that it was his service-connected problem that got in the way of his employment with the USPS. Then, in a June 1993 medical certificate, a doctor noted that the Veteran walked off a job in August 1992 because of disorganized thinking, and schizophrenia was diagnosed. The Board also notes that during the May 1993 VA examination, the Veteran reported that he moved to Guam and was able to get a job in a warehouse, but had to quit because of problems with his knees. However, during an April 1996 VA neuropsychiatric examination, the Veteran reported that he left the warehouse position in Guam when he thought he was returning to the Philippines without any mention of a knee disability. The Board notes that during that April 1996 examination, the Veteran also reported working for a year at a fitness center and enjoyed the job, but quit when he was contacted by the USPS. Then, it appears that the Veteran was again hired by the USPS sometime in 1995, and the Veteran reported in December 1995 that he resigned to "clear his record" and reported that he was being doubled-teamed and getting different orders from different people. During the April 1996 VA examination, however, the Veteran reported that he worked for the USPS for 2 months and encountered difficulties and was told he was too slow. He stated that he was then released after getting into an MVA while driving a Post Office Truck, and had been unemployed since but had a "case" with the Post Office pending. Thereafter, it appears that the Veteran was working part time at a fitness center in August 1996, described as working nights at a gym in October 1996, but in February 1997, he stated he quit his job at the fitness center and was working as a handyman and keeping busy. Of note, on an April 1997 functional capacity assessment for federal disability benefits, no physical limitations were noted. Then, as noted, in relating his work history of physical labor to a July 2007 VA examiner, the Veteran again reported that it was due to his psychiatric disability that he was "forced to resign." The foregoing evidence does not support any current contentions that the Veteran quit or was fired from jobs due to his physical disabilities prior to January 31, 2007, and, at the very least, renders the Veteran's reliability as a historian questionable. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). In the same vein, the Board finds that the Veteran's statements regarding the severity of his physical symptoms and their impact on his ability to work to be inconsistent with other evidence of record. In this regard, ongoing VA treatment notes show that, despite his symptoms and his now reported functional impairment caused by his service-connected disabilities on his ability to work, the Veteran remained active and relatively fit. For instance, in April 1992, while complaining of left knee tendinitis, he was observed to be very muscular and strong. In April 1996 and July 1996, he was reportedly playing basketball, despite having just undergone a right knee surgery. In February 1997, he reported that he was working as a handyman and keeping busy, and in April 1997, he reported that he continued to be physically active. More recently, in October 2000, the Veteran reported cervical and left knee pains, but was also observed to be "muscled," and he reported that he exercised as much as possible. In June 2001, he indicated he was staying active lately doing carpentry, and also tried playing basketball but felt sore afterwards with body aches all over. In December 2002, he reported that he was starting golf. In April 2003, he complained of elbow, foot, and cervicothoracic pain, but reported he still played basketball once a week. Even during the period from January 31, 2007, during which time the Veteran asserted a worsening of his physical symptoms, the record shows that the Veteran was able to obtain new employment, remained active, and was found to be capable of light physical employment. Indeed, the Veteran again went to work for the USPS sometime in 2013, as discussed during December 2013 VA treatment, and from May 2016 to at least August 2016, he was working at a warehouse job. Additionally, regarding activity, the Veteran reported in November 2014 symptoms of dizziness with lifting and walking, supporting that he did those activities. While he reported during April 2015 VA treatment that his foot pain limited his ability to walk, during a July 2015 VA vesting appointment, he reported that for exercise he walked around the mall. Significantly, in September 2015, the Veteran was observed to walk without an assistive device, without a gait abnormality, and to move easily from sitting to standing and with transfers to the exam table. He then reported during a September 2015 VA examination that he rode a bicycle daily to his kids' schools. More proximate to the relevant period on appeal, during a July 2007 VA aid and attendance examination, the Veteran reported that he walked around the house and went out with his kids to the mall. The Board also notes that in November 2013, in conjunction with complaints of chronic pain and symptoms related to his cervical and lumbar spine disabilities, a VA physician was still able to recommend the Veteran for a mail sorting job, though not a courier job, supporting that even as the Veteran's physical disabilities progressed, he was still viewed as able to perform physical work by a treating physician. Indeed, despite the Veteran's complaints of increased symptoms with time, VA examiners in January 2015, June 2015, and September 2015 found no functional impact caused by the Veteran's disabilities, and on an August 2016 Disability Benefits Questionnaire pertaining to the spine, a physician found the Veteran able to walk/stand/sit for 6 hours in an 8 hour work period with 5 minute breaks every 1-2 hours. In August 2017, a VA examiner similarly found the Veteran capable of light physical and sedentary employment. Thus, even now, with additional service-connected physical disabilities and reports of worsening symptoms, the Veteran has still been deemed able to perform light physical work, and such a determination weighs against a finding that 10+ years prior, he was unemployable with fewer physical disabilities and of reported less severity. As a final matter, it appears from the record that a portion of the Veteran's physical impairment is also attributable to nonservice-connected disabilities. The record shows frequent complaints and treatment for dizziness, claimed as vertigo, as well as chest pain and nonservice-connected ailments affecting his upper and lower extremities including shoulder, ankle, and right knee problems. Indeed, the Veteran's knee complaints of record appear to primarily center around his nonservice-connected right knee, for which he underwent surgery in 1996. In any event, there are no medical opinions or evidence of record showing that the Veteran's service-connected disabilities other than schizophrenia, alone, precluded gainful employment prior to January 31, 2007. Even conceding some occupational impairment due the service-connected physical disabilities then in effect, which is accounted for by the assigned 10 percent disability ratings, the evidence simply does not support unemployability due to any service-connected disability or combination of disabilities that does not include the Veteran's psychiatric disability. To the extent that the Veteran asserts that his physical service-connected disabilities alone precluded employment prior to January 31, 2007, his opinion is neither competent nor credible. The Board points out that even in his earlier applications for TDIU in September 2007 and October 2008, the Veteran claimed he was disabled due to both his physical disabilities and his psychiatric disabilities. Similarly, in a May 2000 application for disability life insurance, the Veteran included schizophrenia among the disabilities that rendered him totally disabled. In any event, given the inconsistencies in the Veteran's overall reporting as it relates to his employment and symptom history, the Board must rely on the objective medical evidence of record. And, as noted, the objective findings and impairment related to the Veteran's service-connected physical disabilities shown in the record, to include during VA examinations in February 2005, February 2006, and July 2007, were mild to moderate, at worst, and not productive of rendering the Veteran unable to sustain gainful employment. In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected disabilities, other than schizophrenia, did not render him unable to secure or follow a substantially gainful occupation during the period prior to January 31, 2007. The Board recognizes that there is no single examination or opinion that addresses the cumulative impact of the Veteran's service-connected physical disabilities on his ability to work during the relevant period. However, the Board finds that the individual VA examination reports of record, along with ongoing treatment records, provided sufficient detail and information to adjudicate this claim. Moreover, a "combined-effects medical examination report or opinion" is not required to adjudicate a TDIU claim. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and, as such, is an adjudicative determination properly made by the Board or the RO. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16(a)). In reaching these conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable here. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER For the period since January 31, 2007, the issue of entitlement to a TDIU is moot, and is therefore dismissed. For the period prior to January 31, 2007, a TDIU is denied. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs