Citation Nr: 1804447 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-12 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating due to unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1997 to September 1997, and from June 1999 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont which granted a ratings increase of the Veteran's low back disability with subjective left leg radiculopathy, evaluating it as 40 percent disabling effective January 21, 2011, assigned an evaluation of 100 percent effective September 20, 2011 based on surgical or other treatment necessitating convalescence, and assigned a 40 percent evaluation from January 1, 2013 for the Veteran's low back disability. Additionally, the RO denied service connection for right thigh numbness. In June 2012, the Veteran filed his notice of disagreement which included a correspondence claiming his service connected disabilities rendered him unemployable, was issued a statement of the case in February 2014, and in March 2014 perfected his appeal to the Board. Given that the issue of entitlement to a TDIU is raised as part and parcel of an increased rating claim when the Veteran seeks the highest rating available and there is evidence of unemployability due to service connected disabilities, the issue has been raised in this case and is currently before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As a final preliminary matter, the Veteran requested a Board hearing with regard to his claims. As the Board is granting the benefit sought with regard to TDIU, it will issue a decision on this matter, which has been given a different docket number. The hearing will be scheduled by the RO in connection with the remaining claims, which will retain the previous docket number. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that this PTSD prevents him from gainful employment. He reports keeping mostly to himself since returning from Iraq in 2003 and stated he has a temper which he did not have prior to serving in Iraq. He reported having received his bachelor's degree at the Florida Culinary Institute and previously worked as a sous chef. A TDIU 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 service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). In this case, the Veteran is service connected for PTSD, rated as 70 percent disabling, degenerative disc disease of the lumbosacral spine, rated 40 percent disabling; left knee arthroscopy residuals rated as 10 percent disabling; right knee strain rated as 10 percent disabling; left lower radiculopathy rated as 10 percent disabling; and lumbar spine scar rated as noncompensable. Medical treatment records furnished by the SSA show that the Veteran reported being unable to sit, lift or carry things for more than 10 to 15 minutes because of his back condition, and that his PTSD has affected his ability to concentrate. He reported becoming unable to work in November 2008 due to his service connected conditions. He stated that his PTSD and back conditions make it difficult to follow directions, that he does not handle stress well, and that the gets very nervous when trying to get along with authority figures. In March 2011, the Veteran was afforded a VA spine examination where he reported he was able to carry up to 10 pound occasionally; could perform repetitive hand motions; was able to sit for up to 2 hours during an 8 hour day; could stand/walk 2 hours per an 8 hour day; and that he lies down for 4 hours during an 8 hour day. The Veteran reported that this spine disability had a severe effect on daily living activities and on his ability to exercise, but a moderate effect on driving and traveling. The Veteran was afforded another VA examination in September 2011 wherein the Veteran reported that the state of Vermont deemed him as unfit to work due to his severe back issues, but the examiner noted that his back disability and associated peripheral nerve issues had no effect on the Veteran's usual occupation. The Veteran reported on his April 2016 VA 21-8940 application form that he is unable to lift more than 5 pounds and that his PTSD has progressed to the point where he does not want to do anything and cannot handle being around people or in large crowds. Compensation and Pension examination reports from August 2016 note that the Veteran's left knee condition impacts his ability to work as it limits his ability to walk or stand for prolonged periods of time; his lower back condition limits his ability to sit for more than 15 to 20 minutes without taking a break, and he cannot walk more than 150 feet without sitting down. While the September 2011 examiner opined that the Veteran's back disability and associated peripheral nerve disability had no effect on his usual occupation, the Board affords this opinion little probative weight when determining whether the Veteran is able to secure or follow a substantially gainful occupation as the opinion did not address the functional effect of the Veteran's service connected PTSD. The additional medical opinions of record have determined that the Veteran's service connected low back disability and left knee condition cause significant functional impairment, however the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Taking into consideration the VA examiners' reports regarding the Veteran's inability to sit, stand or walk for long periods of time; the Veteran's report of the functional effects of his service connected PTSD on his ability to secure or follow a substantially gainful occupation including his inability to concentrate, be around other people, or take direction from authority figures; and the Veteran's education and occupational experience, the evidence is at least evenly balanced as to whether his service-connected disabilities preclude him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs