Citation Nr: 1806206 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-24 301A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California 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 Appellant ATTORNEY FOR THE BOARD N. Shah, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The case was later transferred to the RO in Los Angeles, California. The Veteran attended a videoconference before the undersigned in August 2015. A transcript of the hearing is of record. This matter was remanded by the Board in January 2016 and May 2017 for additional development. The record reflects substantial compliance with the remand requests. See Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT The Veteran has been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities from August 19, 2015. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to the VA that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VA's duty to notify was satisfied by the letter dated in June 2017. The VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. 38 U.S.C. § 5103. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. There is no indication that there exists any additional obtainable evidence that has a bearing on this case that has not been obtained. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. II. TDIU Factual Background The Veteran has been granted service connection for thoracolumbar spine strain (rated as 10 percent disabling from July 26, 2007, increased to 40 percent disabling from August 18, 2015, and decreased to 20 percent disabling from February 12, 2016), left lower extremity thoracolumbar spine radiculopathy (rated as 40 percent disabling from July 26, 2007), right lower extremity thoracolumbar spine radiculopathy (rated as 10 percent disabling from July 26, 2007), left knee degenerative joint disease (rated as 10 percent disabling from July 26, 2007, increased to 100 percent disabling from October 23, 2007, decreased to 20 percent disabling from February 1, 2008, increased to 100 percent disabling from May 28, 2009, and decreased to 20 percent disabling from September 1, 2009), right foot arthritis first metatarsophalangeal joint with small plantar calcaneal spur (rated as 20 percent disabling from August 19, 2015), left hip arthritis (rated as 10 percent disabling from August 19, 2015), and pseudofolliculitis barbae (rated as 0 percent disabling from July 26, 2007). Disabilities are combined using the Combined Ratings Table found at 38 C.F.R. § 4.25. Using this table, the Veteran's combined rating for service-connected disabilities was 60 percent from July 26, 2007, increased to 100 percent from October 23, 2007, decreased to 70 percent from February 1, 2008, increased to 100 percent from May 28, 2009, decreased to 70 percent from September 1, 2009, increased to 80 percent from August 18, 2015, increased to 90 percent from August 19, 2015, and decreased to 80 percent from February 11, 2016. In the May 2017 remand, the Board found that the question of entitlement to a total disability rating based on individual unemployability (TDIU), due to the service-connected low back disability, had been raised by the record because a February 2016 VA examination report reflected the examiner's opinion that the Veteran is unable to work due to his low back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In September 2017, the Veteran supplemented the record with a statement regarding the effects of his service-connected disabilities on employment. See Kutscherousky v. West, 12 Vet. App. 369 (1999). Specifically, the Veteran stated that: (1) his right foot disability limits his ability to stand or walk any distance longer than a block; (2) his hip disability limits his ability to walk or sit due to pain; and (3) his back disability limits his ability to sit, stand, bend, or walk to the degree that it has become impossible to perform a normal task. The Veteran submits that he chose to retire solely because he experienced several months of pain and discomfort while attempting to perform his duties. The Veteran further stated that he chose to retire more than 3 years before he had planned to because of his service-connected disabilities. A review of the record indicates that although the Veteran had a 100 percent disability rating due to knee surgeries in October 2007 and May 2009, the record does not indicate that the Veteran was unable to perform occupational tasks that mainly consisted of sitting and other sedentary work. The first indication that the Veteran's ability to sit, stand, and walk for prolonged periods began in July 2012. In July 2012, two VA examiner's reports indicate that the Veteran's low back disability and left knee disability would impact his ability to work, resulting in impaired prolonged sitting, standing, walking, repetitive bending, or heavy lifting. At this time, however, there is no indication in the record that the Veteran's service-connected disabilities prevented him from executing his duties as a probation officer. This is consistent with a July 2014 treatment record, which indicate that the Veteran had a slight decrease in range of left hip internal rotation with no pain reported with hip motion, which the Veteran submits contributes to his inability to sit. The July 2014 treatment record also states that the Veteran had no swelling at the knee. Notably, the Veteran continued to work at his former job until, according to his former employer, February 2015. In August 2015, an examiner found the Veteran's lumbar range of motion testing was limited to forward flexion to 30 degrees, extension to 15 degrees, left lateral flexion to 30 degrees, right lateral flexion to 15. The examiner noted that the Veteran would not be able to sit or walk for prolonged periods due to the severity of his back pain. Further, the examiner noted that the Veteran experienced intermittent bowel and bladder incontinence when the low back pain was more severe. Also in August 2015, an examiner found that the Veteran's left knee degenerative joint disease limited him to walking about 40 feet before needing to stop and rest, had flare-ups with pain on walking and weight-bearing, had an inability to bend or straighten knee without a lot of pain, and had swelling and heat in the knee. The examiner noted that the Veteran was unable to perform repetitive use testing. Finally, the Veteran was service-connected for left hip arthritis and right foot arthritis, two of the problems that the Veteran's statement indicates that he finds most severely impact his ability to work, on August 19, 2015. The Board notes that these examiners' reports and the date of service-connection for the left hip and right foot were approximately six months after the date that the Veteran's former employer stated was his last day of work. In February 2016, during an examination conducted during a flare-up, an examiner stated that because of the Veteran's low back disability, he cannot work due to pain and an inability to walk much or stand for long periods of time. The examiner also noted left side sciatica, which occasionally results in loss of bowel or bladder movement. Also in February 2016, a left knee examination showed that the Veteran has a meniscal tear due to surgeries and frequent episodes of joint "locking," pain, and effusion. The examiner found that the Veteran's left knee disability impacts his ability to perform occupational tasks, severely limited due to pain, stiffness, and swelling causing limited walking and ability to stand. In November 2017, the Veteran was examined by an examiner who provided three examination reports. One report closely examined the Veteran's diagnoses of a thoracolumbar spine strain and bilateral lower extremity lumbar radiculopathy. The examiner found that the Veteran is limited in bending, sitting, and heavy lifting. The examiner also found that the Veteran is functionally impaired due to these diagnoses because the Veteran is limited in standing, walking, pushing, pulling, lifting, and carrying. The examiner found that the Veteran can only perform light physical and sedentary tasks due to these diagnoses. A second report closely examined the Veteran's diagnosis of right foot arthritis first metatarsophalangeal joint with small plantar calcaneal spur. The examiner found that the Veteran is limited in walking and running. The examiner also found that the Veteran is functionally impaired due to this diagnosis because the Veteran is limited in standing and walking. The examiner found that the Veteran can only perform light physical and sedentary tasks due to this diagnosis. A third report closely examined the Veteran's diagnosis of left knee degenerative joint disease. The examiner found that the Veteran is limited in walking and running. The examiner also found that the Veteran is functionally impaired due to this diagnosis because the Veteran is limited in standing, walking, bending, stooping, crouching, crawling, and kneeling. The examiner found that the Veteran can only perform light physical and sedentary tasks due to this diagnosis. Legal Principles and Analysis It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (2017). Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2017). Under the applicable criteria, total disability ratings for compensation based upon 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 disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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. Id. In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' . . . but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present' . . ."). As a preliminary matter, the Board finds that the Veteran does meet the minimum criteria for TDIU on a schedular basis. See 38 C.F.R. §§ 4.16(a), 4.25. As mentioned, the Veteran's left lower extremity thoracolumbar spine radiculopathy has been rated at 40 percent from July 26, 2007, and his combined rating has been above at or above 70 percent from October 23, 2007. Therefore, he satisfies the threshold schedular criteria for an award of TDIU benefits from October 23, 2007. As this issue ultimately arises from a July 2007 claim for service-connection, the earliest effective date for scheduler TDIU is October 23, 2007. Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. §§ 3.340, 3.341, 3.400(b)(2)(i), 4.16(a) (2017); see 38 U.S.C. § 5110(a) ("[T]he effective date of an award based on an original claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."). After a thorough review of the record, the Board finds that an award of TDIU on a schedular basis is warranted from August 18, 2015, the date the Veteran was service-connected for his right foot and left hip disabilities. In making this finding, the Board has considered the Veteran's service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on this issue. The Veteran's entitlement for TDIU stems from his inability to walk, stand, sit, or bend as a result of his service-connected disabilities. Specifically, the Veteran stated that: (1) his service-connected right foot disability severely limits his ability to stand or walk more than a block due to swelling or pain; (2) his service-connected lower back disability impacts his ability to sit, stand, bend, or walk; and (3) his service-connected hip arthritis makes walking or sitting painful. The Veteran's statements are consistent with the medical evidence on record. Based on the combined impact of these disabilities and the Veteran's left knee degenerative joint disease, the Board finds that TDIU is appropriate. The Board notes that the Veteran's civilian occupational history was as a probation officer, most recently as a supervising deputy probation officer. According to the Veteran's former employer, the Veteran worked as a probation officer until December 2016. Notably, the Veteran's employer indicated that the Veteran's last day at work was on February 17, 2015. Moreover, it is reasonable to assume that such a position would require prolonged periods of sitting, standing, and/or walking. The record indicates that the combined effects of Veteran's service-connected disabilities entitle him to TDIU beginning in August 2015. At this time, the Veteran's range of motion for his back were found to have greatly decreased and his knee condition prevented him from walking more than about 40 feet. On August 19, 2015, the Veteran became service-connected for his right foot disorder, which he stated greatly limits his ability to walk, and a left hip disorder, which, with his bilateral lower back radiculopathy and thoracolumbar spine strain, makes it difficult for him to sit, stand, or bend. Notably, when taken together, the disabilities that were assessed in the November 2017 examination reports reflect that the Veteran's service-connected disabilities impact his ability to stand, walk, run, sit, push, pull, lift, carry, bend at the back, bend at the knee, stoop, crouch, crawl, and kneel. As such, the Board finds that from August 19, 2015, the Veteran has not been capable of performing the physical acts required by either physical or sedentary jobs, and thus, an award of TDIU benefits is warranted. (Continued on the next page) ORDER Entitlement to a TDIU is granted from August 19, 2015. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs