Citation Nr: 1757775 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-00 214A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether partial vacatur of an October 27, 2017, Decision of the Board of Veterans' Appeals that, in relevant part, granted entitlement to a total disability rating based on individual unemployability (TDIU) effective January 16, 2014 is warranted. 2. Entitlement to a TDIU. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active duty service from November 1971 to January 1972. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the RO. The Board remanded the case in July 2013 and May 2014 for additional development of the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Board previously rendered a decision in this matter on October 27, 2017, which denied a disability rating in excess of 20 percent prior to January 16, 2014, and a rating higher than 30 percent beginning January 16, 2014, for left shoulder acromioclavicular degenerative arthritis; and also granted entitlement to a TDIU effective January 16, 2014. As will be discussed in greater detail below, the portions of that decision granting entitlement to a TDIU effective January 16, 2014 is vacated herein and readjudicated based on consideration of all the evidence of record. FINDINGS OF FACT 1. On October 27, 2017, the Board issued a decision that granted entitlement to a TDIU effective January 16, 2014. 2. At the time of the October 27, 2017 Board decision, the criteria for a TDIU were not met prior to July 7, 2014. 3. Since July 7, 2014, but not earlier, the Veteran's combined service-connected disability picture met the schedular requirements for award of a TDIU and is shown to have prevented him from obtaining and maintaining all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for vacating that portion of the Board decision issued on October 2017, which granted entitlement to a TDIU effective January 16, 2014, have been met. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2016). 2. The criteria for the assignment of a TDIU are met beginning July 7, 2014. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Partial Vacatur As noted above, the Board previously rendered a decision on this matter on October 27, 2017, which granted entitlement to a TDIU effective January 16, 2014. At the time of that decision, however, the criteria for a TDIU were not met prior to July 7, 2014. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.904(a) (2016). As the October 2017 Board decision failed to assign the correct effective date for the grant of entitlement to a TDIU, that decision is hereby vacated with respect to the January 16, 2014 effective assigned for the TDIU to ensure that the Veteran is afforded due process under the laws and regulations administered by VA. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.904. TDIU The Veteran contends that he is unemployable as a result of his service-connected disabilities. His appeal for a TDIU was raised as a component of an increased rating claim filed in September 2010, thereby beginning the appeal period now before the Board. A. Applicable Law Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16(a). It is also the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). B. Discussion In this case, the Board finds that a TDIU is assignable from July 7, 2014, but not earlier. During the appeal period, the Veteran has been service-connected for (1) degenerative arthritis acromioclavicular joint, left shoulder, rated as 20 percent prior to January 16, 2014, and 30 percent therefrom; (2) low back strain with probable degenerative joint disease lumbar spine (low back disability), rated as 20 percent; (3) radiculopathy, left lower extremity (claimed as pain, both legs) associated with the low back disability, rated as 20 percent from July 7, 2014; and (4) radiculopathy, right lower extremity (claimed as pain, both legs) associated with the low back disability, rated as 20 percent from July 7, 2014. The Veteran's combined disability rating was 40 percent prior to July 7, 2014, and 70 percent therefrom. The Veteran's low back disability was originally granted service connection as secondary ("associated with") the left shoulder disability. The recent medical evidence has called into question this secondary relationship. For purposes of this decision, however, the Board finds that they should be treated as one disability. See 38 C.F.R. § 4.16(a). The combined disability rating prior to January 16, 2014, was 40 percent. Since January 16, 2014, the combined disability rating has remained 40 percent. See 38 C.F.R. § 4.25. Likewise, as his service-connected low back disability and radiculopathies arise from the same etiology, they are considered as one disability. The combined rating for these disabilities was 50 percent. Therefore, he has a single 70 percent rating since July 7, 2014. Accordingly, prior to July 7, 2014, the single 40 percent rating does not meet the criteria for award of a schedular TDIU because there is not one disability rated at 60 percent or more (or two or more disabilities, with at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more). See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Since July 7, 2014, the combined disability rating meets these criteria. As the Board noted in its last remand, there is some question as to when the Veteran stopped working. In various statements, including in March 2014, the Veteran has indicated that he had not worked since 2001 due to his disabilities. But, he informed a May 2006 treatment provider that he experienced pain while at work. He had earlier indicated to an examiner in November 2010 that he stopped working in July 2010 as a general laborer. In an April 2013 statement, the Veteran indicated that he was traveling around because he was looking for work that he could do with his disabilities. In January 2015, he could not make a VA appointment because he was "currently traveling out of state for a job." These statements call into question the accuracy of his statements that he had been unable to work since 2001. In a June 2014 statement, the Veteran noted that he had been accused of contradicting himself. He explained that what he had meant was that he was no longer able to obtain full-time work through general contractors, who would not hire him due to being unable to perform the normal requirements expected of his prior work, including lifting, pulling, pushing "toting lumber," and standing framed walls. He had been forced to look for odd jobs, which he did to have money for food. Although he rationalized his contradictory statements regarding his work history in the June 2014 statement, he did not previously or elsewhere attempt to make this distinction. Instead, he stated unequivocally that he had not worked at all since 2001. Thus, taken together, these statements indicate that the Veteran was purposely manipulating the truth in order to make it appear that he had not been working since 2001 when he had, in fact, been working through at least January 2015. His statements are, therefore, not considered reliable evidence of his past work history. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). He did not submit employment or income history. Therefore, the Board has no way to determine whether his work was less than marginal prior to January 2015. His June 2014 statement indicates that his employment was less than full-time and, by inference, no more than marginal. However, it is impossible to ascertain the accuracy of statements regarding his work and income history in light of his impeached credibility. Even assuming that his employment was marginal throughout the appeal period, the medical evidence indicates that the severity of his service-connected disabilities did not preclude employment prior to July 7, 2014. Specifically, the November 2010 VA examination indicated that the Veteran had constant low back pain, recurrent radiating pain into both legs, and used a cane as needed due to a feeling of unsteady gait. He walked with a noticeable limp, used a cane, and had difficulty standing erect. He could walk up to a mile, if he avoided uneven terrain, and he had difficulty/avoided walking upstairs or climbing ladders. He also had multiple falls and a limited ability to lift and carry due to his left shoulder and low back. He was limited to lifting 30 pounds on an occasional basis. Prolonged sitting was limited to 1 hour; he could stand for 1 hour or more; and he could drive for 1 hour. He was limited in bending forward, stooping repetitively and squatting, and could not throw, run, or jump, or do physical recreational activities. He complained of being limited in his ability to work as a general laborer due to limited lifting, climbing ladders, plus and inability to walk on a "pitchfork rule this," or work overhead lifting walls for framing. His present physical abilities were light physical activities. According to a VA examination conducted in January 2014, a VA examiner noted that the Veteran's normal vocation is carpentry, and concluded that light industrial/clerical work was within his ability by relying on his normal dominant (right) upper extremity with light assistance from his left upper extremity. The VA examiner felt that sedentary work was feasible with frequent position changes as needed, but there could be no repetitive lifting over ten pounds and no repetitive bending due to the back condition. Considering his background in primarily physical labor, this evidence shows that the Veteran could meet the demands of an unskilled or semi-skilled sedentary position, which would allow for on-the-job training and sitting and standing for no more than 1 hour at any particular duration. He could also drive for up to 1 hour, which would allow him to get to and from work. With these functional abilities, it is likely that he would be able to carry out the job functions of a sedentary position. Moreover, as an unskilled or semi-skilled position would allow for on-the-job training, such work would not be outside his background in primarily physical employment. Thereafter, by comparison, the evidence shows that the Veteran would unlikely have the capacity to maintain any type of physical or sedentary employment. Specifically, the evidence suggests that the combined effect of the service-connected left shoulder AC arthritis and degenerative lumbar spine condition with scoliosis would limit any heavy work. According to an April 2016 VA examination, the VA examiner concluded that the Veteran's back was too sore to do his previous carpentry work and or any other physical work, and his sitting was also limited, so he could neither do a physical job nor a sedentary one. As regards the shoulder, VA examiner concluded that he certainly could not do physical work but just for the shoulder he could do sedentary work of a very limited type as he could place the left wrist on a table but not move it with much coordination. The Veteran also added that he was limited to 5-10 minutes of standing then must sit for a while before trying to again walk. By the time of a June 2016 VA Back Examination, the Veteran had functional loss of the lumbar spine in that he had difficulty with prolonged standing greater than 10 minutes. He used a wheelchair on a regular basis for standing or walking more than 10 minutes. The VA examiner found that he would have difficulty with positions that required more than minimal amounts of walking and standing as he used a wheelchair for greater than 10 minutes of walking or standing. He would only be able to do minimal amounts of bending. The VA examiner felt that he should be able to perform sedentary positions, provided he was given the proper ergonomic modifications and allowed to change positions as needed. At VA in March 2017, the Veteran was given a walker due to his ability to walk short distances but then needing to sit due to fatigue, plus falls at times. Two months later, in May 2017, he informed his VA primary care provider that he was now very unsteady and unable to walk 25 feet without losing strength in his legs and falling. He underwent a consultation for a power wheelchair at VA in June 2017. He was utilizing a cane and rolling walker, but complained of weakness that did not allow him to pick himself up if he should fall. He was found eligible for the power wheelchair. At a June 2017 VA Back Examination, the Veteran reported regular wheelchair use and occasional cane or walker (rarely) use. He arrived to the examination in his power wheelchair. The VA examiner found that prolonged standing and walking were severely impaired, so only sedentary tasks would be appropriate. The July 2017 VA examiner found that, although the current back and shoulder examinations were compromised (for example, the examiner was unable to determine the level of functional deficit of his left arm), the available evidence indicated that he would at least be able to perform sedentary tasks with his right, dominant arm with reasonable accommodations. Overall, this evidence indicates that the Veteran would be unable to maintain even sedentary employment. The VA examiners in this case indicated that the Veteran would likely be able to do sedentary employment. The examiners' opinions that the Veteran was employable are non-determinative because it is solely within the Board's adjudicative authority to determine unemployability; it is not a medical determination. See 38 C.F.R. § 4.16(a); Floore v. Shinseki, 26 Vet. App. 376 (2013). Nonetheless, the Veteran's functioning during this time period, with its likely results on employment, was best summarized by the April 2016 VA examiner. The Veteran had a limited ability to sit, stand, and walk, and would primarily need to utilize his right arm in undertaking all work tasks. The Board has trouble imagining any type of unskilled or semi-skilled sedentary position that would facilitate these limitations, even with accommodations, on a sustained basis at more than a marginal level. It appears more likely that any sedentary position would require a degree of physical functioning to carry out the job tasks that has been outside the Veteran's capacity. In short, the Board finds that the Veteran was unemployable as a result of his service-connected disabilities since July 7, 2014. The appeal to this extent is granted. The earliest that it can be factually ascertained, on a credible evidentiary basis, that the Veteran was unemployable by reason of his service-connected disabilities -and met the schedular criteria for a TDIU, is July 7, 2014. A TDIU, therefore, cannot be assigned earlier than that date. To conclude, a TDIU is warranted beginning July 7, 2014, but not earlier. To this extent, the appeal is granted. All reasonable doubt has been resolved in the Veteran's favor where possible. ORDER The portion of the October 27, 2017, Board decision that granted entitlement to a TDIU effective January 16, 2014 is vacated. A TDIU due to service-connected disability is granted beginning July 7, 2014. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs