Citation Nr: 1804250 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-01 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Navy and the U.S. Army from August 1967 to August 1969 and from January 1975 to May 1990, respectively. He was awarded the Army Commendation Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which denied TDIU. The Board considered the appeal in March 2013. At that time, the claim was remanded for additional development. The Board finds there has been substantial compliance with its March 2012 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board's remand) aff'd, 287 F.3d 1377 (2002). For example, in furtherance of the Board's remand instructions, U.S. Social Security Administration (SSA) records have been obtained. The claim was then readjudicated in May 2013. The Board considered the appeal again in July 2016. At that time, TDIU was denied. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In June 2017, the CAVC granted a joint motion that, in pertinent part, vacated the Board's July 2016 denial of TDIU and remanded the appeal. The appellant testified before a Veterans Law Judge (VLJ) at an August 2012 hearing at the RO in Little Rock, Arkansas. A hearing transcript has been associated with the claims file and reviewed. In an October 2017 letter, the appellant and the appellant's representative were advised that the VLJ who conducted the August 2012 hearing is unavailable to participate in a decision in the appeal. The appellant was given an opportunity to request another optional Board hearing within thirty days from the date of the letter. The Board did not receive a timely response from the appellant or the appellant's representative. As such, the Board assumes that the appellant is not seeking an additional optional hearing. The appellant's appeal was perfected with a filing of a substantive appeal received in March 2012. Following the Board's July 2016 decision, new evidence has been included in the claims file. The provisions of 38 U.S.C. § 7105(e) (2012) permitting initial review of new evidence by the Board do not apply in this case because the substantive appeal was filed before February 2, 2013. However, the Board notes that in May 2013 and May 2016, the appellant's representative submitted a written waiver allowing the Board to consider new evidence. Therefore, the Board has proceeded to review all the evidence without remanding for initial review by the agency of original jurisdiction. FINDING OF FACT The Veteran's combined disability rating has been at least 70 percent, with "one service-connected disability" ratable at at least 40 percent, but the competent and probative evidence shows that his service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The evidence shows that the Veteran's claim for TDIU is not warranted. The reasons for this decision follow. I. Notice and Assistance The Board has considered the appealed issue and decided on the matter based on the pertinent evidence. Neither the appellant nor the representative has raised any issues with respect to VA's duties, and no other issues been reasonably raised by the record with respect to VA's duties. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Given this, the Board will proceed to the merits of this appeal. II. Legal Principles A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. See 38 C.F.R. § 4.16(a). If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more, and there must also be sufficient additional disability to bring the combined rating to 70 percent or more. Id. Even without meeting the schedular requirements, a veteran may be eligible for total disability compensation if the evidence shows he is unemployable based on his individual circumstances and service-connected disabilities. VA's policy is to rate as totally disabled all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Id. § 4.16(b). In such cases, the rating boards should submit the case to the Director, Compensation Service for extra-schedular consideration. Id. In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. Id. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. See Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (en banc) (stating that "when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history"). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. III. Analysis The Veteran is service connected for postoperative, right foot deformity with pes planus (30 percent from November 2001); postoperative, left foot deformity with pes planus (20 percent from April 9, 2010 and 30 percent from January 25, 2016); bilateral healing loss (10 percent from September 2008 and 20 percent from March 29, 2016); degenerative disc disease, cervical spine (X-ray only) (10 percent from September 2008); residuals, fracture left clavicle (10 percent from September 2008); tinnitus associated with bilateral hearing loss (10 percent from November 2008); postoperative, left varicocele (noncompensable); and residuals, pilonidal cyst (noncompensable). Based on those above-mentioned disability ratings, the Veteran's combined ratings are 70 percent from April 9, 2010 (the date the TDIU claim was received) and prior to March 29, 2016; and 80 percent from March 29, 2016. Hence, the Veteran's combined rating through the period on appeal has been at least 70 percent. Moreover, because the Veteran's postoperative, right and left foot deformities with pes planus are disabilities of both lower extremities, their combination may be considered a single disability for the purpose of meeting the TDIU threshold. 38 C.F.R. § 4.16(a). The single combined disability rating from the Veteran's bilateral foot disabilities exceeds 40 percent throughout the period on appeal. Based on the above, the Veteran meets the percentage threshold requirements for TDIU. Id. Nevertheless, as explained below, the evidence fails to establish that that the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation due to the impacts from his service-connected disabilities. In his present claim for TDIU, received in April 2010, the Veteran reported having a high school education, no college education, and no specific occupational training. He stated he had last worked full-time in April 2010 and that the service-connected disability that rendered him unemployable was "feet." He listed his employment during the prior five years as (1) a shear operator with Delta Consolidated, Inc., working 40 hours a week from September 1999 to December 2007; and (2) a machine operator with Thomas & Betts, working more than 40 hours a week from May 2008 and with no employment end date. The Veteran had a VA examination of the feet in May 2010 in which he reported pain of 9/10 severity but also reported being able to walk approximately one hour or one-half mile without pain. He reported his foot pain negatively affected his job as a machine operator. The examiner performed an examination of the feet and noted observations in detail. The examiner stated an opinion that the Veteran had significant functional impairment that was due more to his forefoot deformities than to his flexible pes planus deformities; the Veteran did not seem to have the ability to perform a job in which he would be required to stand for prolonged periods of time but would tolerate more sedentary employment quite well. The Veteran had a VA genitourinary examination in August 2010. The examiner noted the Veteran reported being still employed, and stated an opinion that the Veteran was not a candidate for TDIU based on the service-connected varicocele and/or pilonidal cyst. The examiner stated the varicocele would not pose an issue with sedentary employment, although a significant amount of walking could cause the condition to flare up. The examiner stated the pilonidal cyst would not hinder sedentary work assignments unless skin irritants are part of the work cycle (in the Veteran's case, prolonged sitting could irritate the pilonidal cyst). Also, conditions that cause severe skin irritation, cracking or wound exposure could cause concern about transfer of blood-borne pathogens. The Veteran had a VA audiology evaluation in August 2010. The audiologist stated the extent of the Veteran's hearing loss would make speech understanding and communication difficult without the use of hearing aids in many listening environments. With the use of hearing amplification the Veteran would be expected to hear fairly well in quiet situations where people were speaking at close range. Even with the use of hearing aids the Veteran would be expected to have difficulty understanding speech in noisy environments, especially with a lack of visual cues. However, the Veteran's hearing loss did not preclude gainful employment. The Veteran's previously employer's Delta Consolidated, Inc. and Thomas & Betts returned VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability. Delta Consolidated indicated that the Veteran's worked there from November 2000 thru December 2007 as a machine operator. He worked about 10 hours per day and approximately 40 hours per week. In his last 12 months of employment there, he earned about $31,000 and it was indicated that termination was for attendance. The box for time lost due to disability was left blank. Thomas & Betts noted that the Veteran began working there in April 2008 and was still employed there as of December 2010. The Veteran worked as a machine operator in manufacturing. He worked 8 hours per day and 40 hours per week. In the last 12 months of employment, he earned approximately $23, 600. The box for time lost due to disability was left blank. In December 2010 the Veteran submitted a Statement in Support of Claim in which he acknowledged he was still working, although with increased difficulty with prolonged standing. The Veteran's SSA disability file shows he was granted disability effective from May 2011 due to disability of the back (primary diagnosis) and other unspecified arthropathies (secondary diagnosis). Associated with the SSA disability file is a Physical Residual Functional Capacity Assessment in December 2011 in which the examiner's primary diagnosis for disability was multilevel lumbar degenerative disc disease/degenerative joint disease, secondary diagnosis for disability was chronic lumbar pain, and "other alleged impairments" included heart, hearing loss, arthritis and carpal tunnel release. The Veteran's exertional limitations were: occasionally lift 20 pounds, frequently lift 10 pounds, and stand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday. In regard to hearing loss, which is a service-connected disability, the examiner noted that no functional impairment of hearing was perceived during a teleclaim conference; the Veteran reported he had adjusted to how he handled to telephone to accommodate his hearing problems. The Veteran testified before the Board in August 2012 that he had stopped working in May 2011. He reported that the main reason he was not working was his "back." VA examinations were conducted for the Veteran in December 2011 to ascertain whether or not his service-connected disabilities impact his ability to work. The Veteran reported occupational impairment due to the bilateral feet disabilities. He denied any occupational impairment due to any of the other service connected disabilities and the VA examiner identified no such impairment. The VA examinations show the most significant impairment is caused by nonservice-connected coronary artery disease and chronic obstructive pulmonary disease. The December 2011 VA examination report of the cervical spine and left shoulder reflect that the examiner stated the Veteran's diagnosed acromioclavicular joint arthritis and degenerative disc disease of the cervical spine did not impact the Veteran's ability to work. In July 2016, the Veteran underwent VA examinations of the shoulder, feet, and neck. The VA examiner noted that the Veteran's spinal neck condition has no impact on the Veteran's ability to perform occupational tasks. The examiner also indicated that the Veteran's shoulder conditions (left shoulder strain; degenerative arthritis in both sides; and status post fracture, left clavicle) did impact his ability to perform occupational tasks due to increased pain and stiffness. With respect to feet conditions (bilateral flat feet, right metatarsalgia, bilateral hammer toes, and bilateral hallux valgus), the examiner indicated the Veteran cannot stand or walk for an extended time due to pain and stiffness. An additional VA foot examination was conducted in August 2016. The VA examiner reported that the Veteran is unable to ambulate independently due to difficulty with weight bearing. He has experienced frequent falls that have led him to depend on using a cane and/or walker for assistance ambulating. The Board finds the evidence of record does not show the Veteran to be unemployable due to his service-connected disabilities. The Veteran clearly submitted his present claim for TDIU at a time when he was in fact still working, and when he ceased working more than a year thereafter it was due to nonservice-connected lumbosacral spine disability, as shown by SSA records and by the Veteran's own testimony. Moreover, VA examinations from December 2011 show the most significant impairment is caused by nonservice-connected coronary artery disease and chronic obstructive pulmonary disease. VA examiners have established that the Veteran's service-connected disabilities, to include hearing loss, do not preclude gainful sedentary employment that would be consistent with his high school education and his practical experience within the industry as a machine operator for at least ten years, as documented in his present claim for TDIU. The July 2016 VA neck examination shows that the Veteran's neck disability does not impact his ability to work. Although examinations of the feet and shoulder from July 2016 and August 2016 indicate pain and stiffness affecting the Veteran's ability to ambulate or perform occupational tasks, the evidence is not adequate to show those particular disabilities preclude the Veteran from securing certain types of employment, to include any sedentary type of employment. As noted above, the Veteran completed high school and has worked as a skilled laborer - a machine operator for at least 10 years. Based on such factors, to include his ability to work with an employer for longer periods of time (at least 2 years), the Board finds that the Veteran has the adaptability and ability to learn sedentary employment or employment that would only require minimal standing (due to impacts from his service-connected feet). The Board acknowledges that sedentary work would not be easy to find, given the Veteran's age and the impairment caused by nonservice-connected disabilities such as his heart and his carpal tunnel syndrome as cited by SSA. However, these factors are not for consideration in a claim for TDIU. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Furthermore, the sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Id. Through the period on appeal, the Veteran was not unable to secure and follow a substantially gainful occupation by reason of a service-connected disability. For this reason, TDIU is not warranted. 38 C.F.R. § 4.16. ORDER TDIU is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs