Citation Nr: 18143599 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-31 770 DATE: October 19, 2018 ORDER Entitlement to a TDIU prior to November 2, 2016 is granted. FINDING OF FACT Prior to November 2, 2016, the Veteran’s service-connected disabilities rendered him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU prior to November 2, 2016 have been met. 38 U.S.C. §§ 1155, 5107(b), 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to November 1988. This matter comes before the Board on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In VA Form 21-8940 dated in February 2015, the Veteran maintained that his service-connected posttraumatic stress disorder (PTSD) rendered him unemployable. In the May 2015 Notice of Disagreement (NOD), the Veteran contended that his “feet and legs make it impossible to do any kind of physical activity for more than 30-45 minutes”, in addition to his PTSD with major depressive disorder, that made him “incapable of working with others”. The Veteran is service-connected for PTSD with major depressive disorder, rated as 100 percent disabling effective November 2, 2016 (70 percent prior to November 2, 2016); degenerative arthritis, DDD, lumbar spine associated with degenerative joint disease (DJD), right knee, rated as 20 percent disabling effective August 2, 2010; radiculopathy sciatic nerve, right lower extremity (claimed as right leg numbness and tingling) associated with degenerative arthritis, DDD, lumbar spine effective August 2, 2010; radiculopathy anterior crural nerve (femoral), right lower extremity (claimed as right leg numbness and tingling) associated with degenerative arthritis, DDD, lumbar spine rated as 20 percent disabling effective August 2, 2010; DJD, right knee, rated as 10 percent disabling effective January 7, 2003; DJD, left knee, rated as 10 percent disabling effective January 7, 2003; pes cavus, left foot, with callus formation and arthritic changes of the first metatarsal phalangeal joint, rated as 10 percent disabling effective January 7, 2003; pes cavus, right foot, with callus formation and arthritic changes of the first metatarsal phalangeal joint, rated as 10 percent disabling effective January 7, 2003; tinnitus, rated as 10 percent disabling effective January 7, 2003 and bilateral hearing loss, rated as noncompensable. The Veteran had a combined rating of 90 percent beginning August 2, 2010 and a 100 percent rating beginning November 2, 2016. Beginning November 2, 2016, the Veteran is in receipt of one disability rated total and additional disabilities independently rated at 60 percent or more for which he is in receipt of special monthly compensation at the housebound rate. See 38 U.S.C. 1114(s); 38 C.F.R. 3.350(i). Consequently, the issue of entitlement to a TDIU beginning November 2, 2016 is moot as there is no further duty to maximize benefits. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Prior to November 2, 2016, the schedular criteria for a TDIU have been met under 38 C.F.R. § 4.16(a). Thus, the remaining question is whether the Veteran was able to secure or follow a substantially gainful occupation due solely to his service-connected disabilities prior to November 2, 2016. A review of the record evidence indicates that in July 2011, the Social Security Administration deemed the Veteran disabled as of September 2009 due to discogenic and degenerative disorders of the back; osteoarthrosis and allied disorders. On VA outpatient treatment in August 2010, the Veteran reported that he retired because he could not “hold up to the physical requirements of the job due to back pain”. A January 2013 VA treatment note indicated that the Veteran endorsed spending his day doing woodwork and remodeling his house “when he [felt] like doing it”. The Veteran reported that his pain limited his activity. In August 2014, the Veteran was afforded a VA PTSD examination. The examiner determined that the Veteran’s PTSD manifested as occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran exhibited moderate to severe social impairment and that the Veteran was 63 years old and retired at the time of examination; so, a determination of occupational functional impairment was not provided. In August 2014, the Veteran was afforded a VA Back (Thoracolumbar Spine) Conditions examination. The Veteran was diagnosed with degenerative arthritis, lumbar spine; lumbosacral DDD per x-rays; and right lower extremity radiculopathy secondary to degenerative arthritis, lumbar spine and lumbosacral DDD. The Veteran reported that he performed sedentary work answering the phone as a volunteer at the Red Cross 4 hours a day, 2 days a week. The examiner opined that the Veteran’s back condition impacted his ability to work. The examiner explained that the Veteran could occasionally lift/carry a maximum of 20 pounds above the mid-thigh level. The Veteran could walk or stand for a maximum of 2-3 hours per 8-hour work day, while using a cane, on non-hazardous and level terrains only. The Veteran could continuously stand for a maximum of 15 minutes per hour. The examiner explained that the Veteran should avoid running, jumping, climbing, crawling, spine vibration and impact exposures. The Veteran should infrequently knee, crouch, and stoop. On the February 2015 Application for Increased Compensation Based on Unemployability, the Veteran contended that he was unemployable due to his service-connected disabilities. His last fulltime employment was in July 2009 as a Corrections Officer with the Department of Corrections, St. Jefferson City, Missouri. The Veteran worked as a Corrections Officer from 1989 to 2009. According to the Veteran, he left the Missouri Department of Corrections because of his disabilities. The Veteran completed 2 years of college and did not pursue any additional training/education since he became too disabled to work. In April 2015, the Veteran was afforded another VA PTSD examination. He was diagnosed with PTSD and major depressive disorder, recurrent, in partial remission. The examiner determined that the Veteran’s condition manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he owned a remodeling “side business” and worked 80 hours a week to “keep his mind busy”, and that “the more [he] worked, the better [he] felt”. The Veteran denied problems with completing his job responsibilities; but, noted difficulties with anger and irritability. He indicated that he had to walk away from situations at work because of his anger. The examiner rendered the clinical assessment that the Veteran’s PTSD with major depressive disorder impacted the Veteran’s work performance because of his irritability and angry outbursts leading to the Veteran taking temporary breaks from situations. The April 2015 examiner further explained that sleep impairments would increase fatigue, which would have acute adverse effects on the Veteran’s cognitive functioning and increase the chance of error. The examiner noted that the Veteran denied general problems with completing his job responsibilities and indicated that he worked frequently as a coping strategy for his symptoms of PTSD. During the evaluation, the Veteran denied that his symptoms of PTSD were the cause of his retirement. In the examiner’s judgement, there are a number of overlapping symptoms that could be attributable to the Veteran’s PTSD and major depressive disorder. However, according to the examiner, the Veteran reported that his depression did not occur until after retirement. Therefore, the examiner concluded, the majority of the Veteran’s reported impairments were likely related to his PTSD symptoms, which are likely exacerbated by the major depressive disorder. In May 2016, the Veteran was afforded yet another VA Back (Thoracolumbar Spine) Conditions examination. In the examiner’s judgment, the Veteran’s service-connected degenerative arthritis, DDD, lumbar spine; (mild) pes cavus of the bilateral feet; and DJD of the bilateral knees did not render the Veteran incapable of securing and maintaining gainful employment. The examiner determined that the Veteran’s non-service connected conditions of chronic obstructive pulmonary disease; respiratory insufficiency; emphysema of the lung; continued tobacco use; deconditioning; dyspnea with minimal exertion attributed to multiple lung conditions; history of cerebral aneurysm with transient ischemic attacks and headaches; obesity and habitual inactivity greatly affected the Veteran’s ability to be gainfully employed. In May 2016, the Veteran underwent a VA Foot Conditions examination and was diagnosed with bilateral, flat foot (pes planus); bilateral pes cavus (claw foot) and bilateral degenerative arthritis. The Veteran reiterated his work history as a Corrections Officer and that it involved a lot of walking and prisoner handling. He also reported his work history in the maintenance industry. The Veteran reportedly lifted and carried 5-gallon buckets of paint 500 feet at least 1-3 times a day. He occasionally lifted 50 pounds and lifted 25 pounds at least 10 times a day. The examiner opined that the Veteran would have difficulty with running, standing, and walking for long distances. In May 2016, the Veteran underwent a VA Knee and Lower Leg Conditions examination. He was diagnosed with bilateral knee degenerative arthritis. In the examiner’s judgement, the Veteran’s bilateral knee condition did not impact his ability to perform any type of occupational task. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence establishes that the Veteran was unemployable due to his service-connected disabilities prior to November 2, 2016. In so finding, the Board considers the August 2010 VA examination during which the Veteran reported that he could no longer work due to his service-connected back condition. In July 2011, SSA deemed the Veteran disabled due to discogenic and degenerative disorders of the back; osteoarthrosis and allied disorders. In the same manner, the August 2014 VA examiner determined that the Veteran’s back condition impacted his ability to work and recommended restricted physical activity. Even the July 2011 SSA disability determination and the August 2014 VA medical opinion were consistent with the Veteran’s contentions in the May 2015 NOD, in which he averred that the symptoms of his service-connected lower extremity disability prevented him from working. In addition, the Board notes that the Veteran’s service-connected PTSD with depressive disorder significantly impacted his occupational functioning prior to November 2, 2016, as evidenced by his 70 percent disability rating for PTSD. As shown by the April 2015 VA PTSD examination, the Veteran had difficulties with anger and irritability and had to walk away from situations at work because of his anger. The examiner opined that the Veteran’s PTSD with depressive disorder impacted the Veteran’s work performance because of his irritability and angry outbursts. The examiner also explained that sleep impairments would increase fatigue, which would have acute adverse effects on the Veteran’s cognitive functioning and increase the chance of error. The only outlier to the evidence of record is the Veteran’s report at the April 2015 VA examination that he owned a remodeling “side business” and worked “80 hours a week” to “keep his mind busy” because “the more [he] worked, the better [he] felt”. This is in stark contrast to the lay and medical evidence prior to the VA examination and thereafter. The Veteran has endorsed irritability and angry outbursts that prevented effective work relationships. Moreover, the examiner opined that the Veteran’s irritability, angry outbursts and sleep impairment impacted his work performance. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities rendered him incapable of securing or following substantially gainfully employment prior to November 2, 2016. Thus, entitlement to a TDIU is warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel