Citation Nr: 18141778 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 09-04 069 DATE: October 11, 2018 ORDER Effective November 18, 2008, a total disability rating based on individual unemployability (TDIU) is granted. Prior to November 18, 2008, a TDIU is denied. REMANDED A compensable rating for service-connected fibrocystic breast disease is remanded.   FINDING OF FACT From November 18, 2008, the Veteran’s service-connected disabilities preclude her from securing and following substantially gainful employment. CONCLUSION OF LAW From November 18, 2008, but not earlier, the criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to July 1991. The case is on appeal from a November 2006 rating decision. In January 2016, the Veteran testified at a Board hearing. Thereafter, in March 2017, the Board reopened and granted a claim of service connection for persistent depressive disorder, denied compensation under 38 U.S.C. § 1151 for left foot disability, and remanded the claims addressed herein for additional development. In a March 2018 correspondence, the Veteran requested additional time to submit evidence. However, in an August 2018 correspondence, she cancelled this request. Entitlement to a TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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(a). For the purpose of meeting these schedular criteria, disabilities affecting a single body system, e.g. orthopedic, will be considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Facts and Analysis The Veteran contends that she is unable to work due to her service-connected disabilities. In this regard, during the January 2016 Board hearing, the Veteran reported that, while she had worked a part time job briefly a few weeks prior to the hearing, she is unable to maintain gainful employment due to pain and an inability to concentrate. Thereafter, in July 2017, the Veteran submitted a TDIU application. She reported last working fulltime in January 2002 as a billing representative, and contended that she became too disabled to work by January 2005. The Veteran also reported briefly working in May 2010 and May 2016 and earning less than $200 total at each job. She further reported completing four years of college with no additional vocational education or training. The Veteran was granted disability by the Social Security Administration (SSA) in May 2005. SSA reported that the Veteran had physical limitations due to her left foot and hip as well as psychiatric limitations. It was further found that the Veteran lacked the capacity to perform physical labor or sedentary employment given her education level and past work experience. SSA determined that the Veteran had been disabled since December 2003. In July 2017, the RO associated the findings of a VA rehabilitation coordinator from January 2010 with the file. The coordinator reported that the Veteran’s service-connected disabilities prevent her from prolonged standing and walking, lifting and carrying moderate weighted objects, and repeated squatting, bending, kneeling, and climbing stairs. The coordinator also reported that the Veteran’s service-connected gastroesophageal reflux disease (GERD) causes episodes of pain and vomiting. The examiner further noted that the Veteran has mental disabilities that pose barriers to employment and that she requires a cane to walk. He concluded that the Veteran experiences serious limitations in her ability to work due to her service-connected disabilities. The Veteran was afforded a VA examination in regard to her left foot disability in October 2013. The Veteran reported that she is unable to walk or stand for longer than 30 minutes and requires a walker due to left foot numbness, pain, and paresthesias. The examiner found that she experiences left lower extremity mild paresthesias, moderate constant pain, and severe numbness and intermittent pain. The Veteran was examined again by VA in regard to her left foot in December 2014. The examiner reported that the Veteran has poor tolerance to prolonged standing and ambulation due to pain and sensory deficits. The examiner also examined the Veteran in regard to her left hip. He found that her left foot and hip conditions result in a gait abnormality that requires the use of a cane for walking. The Veteran was afforded a VA examination in regard to her depressive disorder in December 2013. The examiner found that the Veteran experiences symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner concluded that the Veteran’s depressive disorder results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of the combined effects of her service-connected disabilities. This is particularly so when reasonable doubt is resolved in her favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this regard, the Veteran has not held substantial, gainful employment during the period on appeal. Any employment has been marginal, which is excluded from the analysis. In addition, the VA examinations of record show that the Veteran’s left foot and other physical disabilities prevent her from performing manual labor positions while her depressive disorder prevents her from obtaining and performing sedentary employment. This finding is supported by the January 2010 VA rehabilitation coordinator’s report. Furthermore, while not controlling, SSA found that, given the Veteran’s her past work experience and education level, she is unable to obtain work due to the functional limitations resulting from her left foot and psychiatric disabilities. As far as the effective date of the TDIU award, the Veteran is service connected for bilateral plantar fasciitis and metatarsalgia evaluated as 10 percent disabling from July 12, 1991 to August 31, 1994, noncompensable from September 1, 1994 to July 29, 2004, 10 percent disabling from July 30, 2004 to March 3, 2008, 100 percent disabling from March 4, 2008 to June 30, 2008, 10 percent disabling from July 1, 2008 to March 9, 2015, and 50 percent disabling thereafter; fibrocystic breast disease evaluated as noncompensable from July 12, 1991; depressive disorder associated with bilateral plantar fasciitis and metatarsalgia evaluated as 50 percent disabling from November 18, 2008; irritable bowel syndrome, gastritis, and GERD evaluated as 10 percent disabling from March 9, 2009 to April 26, 2011, and 30 percent disabling thereafter; a left foot scar evaluated as 10 percent disabling from April 27, 2011; sinusitis evaluated as 10 percent disabling from May 27, 2014; left hip sacroillia evaluated as 10 percent disabling from June 4, 2014; allergic rhinitis evaluated as 10 percent disabling from July 28, 2015; additional left foot scars evaluated as noncompensable from November 7, 2016; and a biopsy surgical scar evaluated as noncompensable from August 1, 2017. The Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) since November 18, 2008. At that time, service connection was in effect for depressive disorder, plantar fasciitis and metatarsalgia, and fibrocystic breast disease. Although the combined rating was 60 percent, because the depressive disorder was granted secondary to the foot disorder, they are considered to be disabilities resulting from a common etiology. Thus, the schedular criteria are met as they are considered one disability for TDIU purposes. See 38 C.F.R. § 4.16(a)(2). Thus, the Board finds that the proper effective date for the TDIU award is November 18, 2008. This is the date service connection went into effect for the depressive disorder. Prior to this date, the Board finds that a TDIU is not warranted as the Veteran was service connected solely for the foot and breast disorders, which combined to 10 percent disabling. The Board has found that the physical and mental impairments have combined to preclude the Veteran from securing and following substantially gainful employment. Accordingly, the preponderance of the evidence is against a TDIU prior to when service connection went into effect for depressive disorder. REASONS FOR REMAND A compensable rating for service-connected fibrocystic breast disease. In regard to the Veteran’s rating for fibrocystic breast disease, VA amended 38 C.F.R. § 4.116 in April 2018 (effective May 13, 2018), including the addition of Diagnostic Code (DC) 7631. DC 7631 provides that benign neoplasms of the breast and other injuries of the breast should be rated based on impairment of function, including due to limitation of arm, shoulder, and wrist motion, or loss of grip strength or sensation. 38 C.F.R. § 4.116, DC 7631. The Veteran reported in a September 2006 correspondence, and during the January 2016 Board hearing, that she experiences arm pain and limitation of motion due to this disability. Therefore, as these aspects of the Veteran’s condition have not yet been evaluated, a remand is warranted to determine the nature and severity such symptomatology. Additionally, the RO will be able to consider the amended rating criteria in the first instance. Furthermore, updated VA treatment records should be associated with the file. This matter is REMANDED for the following actions: 1. Obtain complete VA treatment records from April 2017. 2. After completing the records development indicated above, schedule a VA examination by an appropriate medical professional to assess the current severity of the Veteran’s service-connected fibrocystic breast disease, to include specific findings regarding pain on range of motion testing and an estimation of functional loss due to functional impairment of her arms and shoulders. (Continued on the next page)   3. When readjudicating the claim, consider the old rating criteria for the entire rating period, and the amended criteria from May 13, 2018. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel