Citation Nr: 1800586 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-17 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and L. N. ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1956 to June 1959 and from November 1960 to November 1977, with additional service in the U.S. Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A hearing was conducted before an RO Decision Review Officer (DRO) in May 2015. A transcript of that hearing is of record. For clarification purposes, the Board acknowledges that a claim for entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD), lumbosacral spine status post laminectomies with right nerve impingement, was certified by the RO for appellate consideration. This certification was procedurally improper. Historically, in a December 2016 rating decision, the RO denied a September 2016 claim for increase rating for DDD. Thereafter, the RO issued two supplemental statements of the case in February and July 2017 addressing both the claim for TDIU and the claim for increase rating. That said, the record is silent for the Veteran submitting a proper NOD and for the RO issuing a statement of the case (SOC) on the issue of increase rating for DDD. Both omissions preclude the Board from taking jurisdiction of the Veteran's claim for increase rating. See generally Percy v. Shinseki, 23 Vet. App 37 (2009) (noting that the relevant statutory language indicates clear intent by Congress to foreclose the Board's exercise of jurisdiction over a matter where a notice of disagreement had not been filed...). To that end, the Board notes that it cannot liberally construe the September and December 2017 correspondence provided by the Veteran's representative as informal NODs. Effective March 24, 2015, VA only accepts issues listed on a timely-filed VA Form 21-0958, in cases where the AOJ provides the form for the purpose of initiating an appeal. 38 C.F.R. § 20.201 (2017). The only exception would be if a decision notice was sent prior to March 24, 2015. In such a case, an NOD could be submitted on a VA Form 21-0958, and an appeal could be raised by expressing disagreement with a rating decision in writing or on the record at a hearing. Here, however, a decision notice letter was sent to the Veteran in December 2016. This letter informed him of the denial of his claim for increase rating, and stated that he must complete and return the enclosed VA Form 21-0958, within one year in order to initiate his appeal. As stated, the record is silent for an NOD filed on the standard form. Therefore, an appeal of the December 2016 denial of increase rating was not initiated. In turn, Board jurisdiction has not been established and no further action regarding this matter will be taken. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2017). FINDING OF FACT The Veteran's service-connected disabilities preclude gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating are met. 38 U.S.C. § 1155, 5103, 5107 (2002); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As the Veteran's claim is granted herein, any error related to the VA's duty to notify and assist is moot. 38 U.S.C. § 5103, 5103A (2002); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Disability evaluations are determined by comparing the Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.34. Total disability ratings for compensation 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. § 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Veteran's service-connected disabilities are DDD, lumbosacral spine status post laminectomies, evaluated at 40 percent disabling as of May 23, 2001; right lower extremity radiculopathy (RLER), evaluated at 20 percent disabling as of April 1, 2008; left lower extremity radiculopathy (LLER), evaluated at 10 percent disabling from April 1, 2008, and 20 percent as of September 28, 2016; coronary artery disease (CAD), evaluated at 10 percent disabling as of August 27, 2001; tender scar of the lumbar spine, evaluated at 10 percent as of April 1, 2008; and a noncompensable rating for hemorrhoids as of December 1, 1977. A combined disability rating of 70 percent has been in effect since April 1, 2008. In other words, the schedular requirements of 38 C.F.R. § 4.16 (a) have been met throughout the entire appeal period. The relevant question therefore is whether these disabilities preclude substantially gainful employment. Turning to the evidence, the Veteran completed one year of college. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He last worked full time as a mail sorter for the United States Post Office in 2000. Id. He in part left this position because he was unable to keep up with the physical strain of standing for hours. See DRO Hearing Transcript. In the instant case, medical experts are in agreement that his service-connected disabilities, particularly his lumbar spine impairment, preclude physical employment. See October 2012 VA Examination Report; see Dr. J. A., M. D.'s April 2013 Correspondence. As such, the pertinent question is whether his disabilities also preclude sedentary employment. Initially, the Board clarifies that the positive and negative opinions in evidence addressing sedentary employment are inadequate. In brief, the October 2012 VA examiner opined sedentary employment was possible, but failed to truly address the functional impairments associated with the Veteran's spine beyond limitation of motion. Additionally, the examiner completely omitted consideration of his already service-connected bilateral radiculopathies. Correspondingly, although the Veteran's private physician Dr. A. opined that his DDD rendered him totally unemployable, no rationale was provided to support this determination. That said, the Board nevertheless finds sufficient evidence to grant TDIU as the clinical and lay evidence is highly suggestive that the Veteran is unable to gain or maintain sedentary employment. As to lay evidence, the Veteran and his spouse, L. N., testified that employment was impossible as he suffers from constant pain after being seated for more than even a few minutes. Thereafter, on October 2016 VA examination, the Veteran reported that his disabilities were so severe that he could no longer even sleep on a conventional bed; instead, he slept in a semi-recumbent position on a recliner. He also reported that his current recliner was insufficient and that he was in the process of ordering a "lifting chair" to help him lift from a seated position as his pain was too severe. As to clinical evidence, the Veteran's reports of a severe disability picture precluding employment were essentially confirmed by the October 2016 and July 2017 VA examiners. First, the 2016 examiner confirmed the Veteran's reported level of pain as being objectively visible during physical examination. The examiner then indicated that even without movement the Veteran suffered from moderate to severe radicular symptomatology, including pain, numbness, and decreased sensation. Lastly, although no opinion was obtained, the 2016 examiner confirmed the Veteran's disabilities impacted his ability to work. Subsequent to this examination, a separate examiner in 2017 clarified that the Veteran experienced pain throughout all ranges of motion including passive, active, and weight-bearing. That said, these collective pieces of evidence clearly weigh against the Veteran being able to realistically obtain and maintain substantially gainful employment. As stated, physicians have deemed physical employment inappropriate for the Veteran. To that end, his former position as a mail sorter, if considered a form of physical employment, is no longer feasible. In arguendo, if this position was deemed not physically demanding, he still would be unable to conduct his former work as he has minimal ability to stand or sit for protracted periods. Correspondingly, any form of sedentary employment is severely limited by his almost guaranteed need to constantly readjust himself to relieve pain and/or other symptomatology. Realistically, such constant movement would be incredibly difficult for the Veteran as his service-connected disabilities diminish his mobility. As indicated above, the Veteran's level of pain at minimum severely impacts his ability to regularly rise from a seated position. In this regard, the Board finds it unlikely that the Veteran would be able to find employment allowing for constant readjustment and providing chairs with a mechanism made to assist with rising from a seated position. Furthermore, the Board finds it reasonable that the Veteran would have difficulty properly completing tasks while constantly moving to relieve his always present symptomatology. Importantly, beyond the aforementioned concerns, are the symptoms associated with his other service-connected disabilities which were not explicitly discussed herein. All of which further lessen the likelihood of sustained employability. In sum, the collective symptoms associated with his service-connected disabilities make it highly unlikely that he would realistically be able to obtain and maintain gainful employment. Thus, giving the Veteran the benefit of the doubt, the Board will find that he is unable to obtain and maintain any form of substantially gainful employment due to his service connected disabilities. The criteria for TDIU have been met. 38 C.F.R. § 3.340, 3.341, 4.16 (2017). Issuance of a TDIU in turn raises the issue of entitlement to special monthly compensation (SMC). In that regard, the Board has considered the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). The Court in Bradley held that, SMC might be warranted when a separate award of a TDIU rating, predicated on a single disability (perhaps not ratable at the schedular 100 percent level), is considered together with another disability separately rated at 60 percent or more. See 38 U.S.C. §1114 (s); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). The Board does not find that an SMC rating is for application. The above grant of TDIU is predicated on the collective impact of the Veteran's service-connected disabilities. In addition, he has not appealed the RO's January 2015 denial of SMC Aid and Attendance/Housebound benefits. Finally, subsequent to this denial the record reflects that he traveled to medical appointments and other locations. As such, the concerns addressed in Bradley and Buie are not present, and the Board needs not further address whether SMC ratings are warranted during the pendency of the appeal. ORDER Entitlement to a TDIU is granted. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs