Citation Nr: 1800969 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-37 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based upon individual employability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served in active duty from August 1978 to June 1985, and from May 2002 to July 2003. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction resides with the Columbia, South Carolina RO. In June 2017, the Board denied an initial rating in excess of 20 percent for lumbar spine spondylosis and granted a rating of 10 percent for left lower extremity radiculopathy from January 27, 2009. The Board remanded the issue of entitlement to TDIU to request that the Veteran fully and accurately complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability and submit it to the RO. In August 2017, the VA sent a letter requesting that the Veteran complete an enclosed VA Form 21-8940. As the VA complied with the remand instructions, the Board finds substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT The Veteran's service-connected disabilities render him unable to engage and retain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist In light of the favorable decision to grant the Veteran's claim of entitlement to a TDIU, any deficiency as to VA's duties to notify and assist, as to this issue, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot. Legal Principles and Analysis The Veteran contends that he is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 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. The Veteran has been in receipt of a 20 percent evaluation for a right shoulder post reconstruction and rotator cuff tear since July 19, 2003; 20 percent evaluation for a chronic right ankle sprain with arthritis since June 22, 2007; 10 percent evaluation for a chronic right ankle sprain with arthritis from July 19, 2003 to June 22, 2007; 20 percent evaluation for a chronic left ankle sprain since June 22, 2007; 10 percent evaluation for a chronic left ankle sprain from July 19, 2003 to June 22, 2007; 10 percent evaluation for a left knee anterior cruciate ligament and medial collateral ligament tear since July 19, 2003; 20 percent evaluation for lumbar spondylosis since January 27, 2009; 10 percent evaluation for lumbar radiculopathy left lower extremity associated with lumbar spondylosis since January 27, 2009; and a 10 percent evaluation for tinnitus since October 21, 2003. The combined rating has been 40 percent from July 19, 2003, 50 percent from October 21, 2003, 60 percent from June 22, 2007, and 70 percent from August 17, 2011. For the above 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. 38 C.F.R. § 4.16. Hence, because the Veteran's chronic right ankle sprain, chronic left ankle sprain, lumbar spondylosis, and left knee disabilities combine to a rating of greater than 40 percent when including the bilateral factor, the Veteran has met the schedular requirements for TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty level threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned income." In reaching such a determination, the central inquiry 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 may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the evidence of record shows that the Veteran has been unemployed since 2009. In addition to the Veteran's military service, the Veteran's Social Security Administration (SSA) records indicate that he has a history of being employed in construction as a laborer. However, SSA records indicate that the Veteran stopped working as a laborer in 2009. In January 2013, the Veteran underwent a VA examination for his back. The VA examiner diagnosed the Veteran with spondylosis and degenerative disc disease. The VA examiner opined that the Veteran's back condition impacted his ability to work and noted that the Veteran has not worked in several years due to back pain. In May 2015, the Veteran underwent a VA examination for his back. The Veteran reported functional loss or impairment due to his back condition. Specifically, the Veteran noted that the pain is worse with any activity that involves forward flexion and side flexion. The VA examiner noted that the Veteran had an abnormal range of motion that contributed to a functional loss. The VA examiner indicated that the Veteran is unable to fully forward flex and lift objects. The VA examiner also noted that his back condition affects his ability to work, as the Veteran has pain with bending, lifting, walking, and weight bearing. In addition, in May 2015, the VA examiner provided a medical opinion as to whether each of the Veteran's service-connected disabilities affected his ability to work. The VA examiner opined that the Veteran's right rotator cuff reconstruction, left ankle sprain, right ankle sprain, left knee anterior cruciate ligament/medial collateral ligament (ACL/MCL), and lumbar spondylosis produces pain which prevents him from participating in manual labor. The VA examiner indicated that his service-connected disabilities did not pose a limitation to sedentary employment. The Board finds both the January 2013 and May 2015 examiner opinions probative. The examiners physically examined the Veteran and addressed his work history and potential in accordance with his physical capabilities. The Board notes that the Veteran also receives SSA benefits for his spine disability. A June 2009 SSA decision found that the Veteran had been disabled as of May 2009, due to the Veteran's service-connected degenerative disc disease of the lumbar spine and left knee arthritis. While not dispositive, the Board finds this decision probative as it is in line with the overall record. Given the probative evidence, the Board finds that the Veteran's service-connected shoulder, back, knee, and ankle disabilities inhibited his ability to maintain substantially gainful employment in a physical work environment. As to the physical work, the record supports that the Veteran's shoulder, back, knee, and ankle issues make full time physical work highly difficult as he had issues with bending, lifting, walking, and weight bearing. Furthermore, the Veteran worked in construction, which requires competent physical ability. As such, the Board finds that the Veteran could not perform physical tasks commensurate with his work history on a basis that would allow him to maintain substantially gainful employment. With respect to sedentary work, the Board acknowledges the May 2015 VA examination opinion that the Veteran's service-connected disabilities did not limit the Veteran's ability to perform sedentary work. However, given the Veteran's education and work history, which is predominantly in manual labor, the Board does not believe that he would be able to routinely secure work in a sedentary environment. Given the evidence, the Board finds that the Veteran's overall disability picture impairs his ability to obtain and follow substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence supports the Veteran's claim for entitlement to a TDIU due to his service-connected disabilities. ORDER Entitlement to a TDIU due to service-connected disabilities is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs