Citation Nr: 18144418 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-35 056 DATE: October 24, 2018 ORDER Prior to April 7, 2012, a total disability rating based on individual unemployability (TDIU) is denied. Beginning April 7, 2012, a TDIU is granted. REFERRED The issue of entitlement to service connection for a psychiatric disorder, to include as secondary to the Veteran’s service-connected disabilities, was raised in a letter from a private physician dated January 2013, received by VA in February 2013, and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran was gainfully employed until April 6, 2012, when he resigned and retired. 2. Beginning April 7, 2012, the Veteran’s service-connected disabilities have rendered him unable to secure or maintain substantially gainful employment, considering his previous employment history and education, for the entire period on appeal. CONCLUSION OF LAW 1. Prior to April 7, 2012, the criteria to establish entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). 2. The criteria to establish entitlement to a TDIU have been met beginning April 7, 2012. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to December 1973. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board in his July 2016 substantive appeal, via a VA Form 9. Additional VA treatment records were uploaded to the claims file after the Veteran signed an August 2018 waiver of consideration of the Agency of Original Jurisdiction; however, the additional records were not pertinent to this claim, and as such, the Board will proceed with adjudication. Pertinent Laws and Regulations and Analysis for a TDIU A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board notes that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007); rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a).   TDIU Analysis In his January 2013 TDIU application (VA Form 21-8940), the Veteran asserted that his back disability, bilateral leg disability (service connected as bilateral lower extremity radiculopathy), and psychiatric conditions (not service-connected) prevented him from securing or following any substantially gainful employment. He reported that he last worked full-time on April 6, 2012, after retiring from civil service as an air conditioning mechanic for the Navy. He left his last employment due to his service-connected disabilities. The Veteran completing high school and two years of college. Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude him from substantially gainful employment. Before March 6, 2012, the Veteran was service-connected for the following disabilities: bilateral sensorineural hearing loss, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and lumbosacral spine disabilities, rated at 40 percent disabling. As such, the Veteran’s combined disability rating during the appellate period before March 6, 2012 was only 60 percent. Thus, the Veteran did not meet the schedular requirement before March 6, 2012. However, the Veteran was, in fact, substantially and gainfully employed before April 6, 2012. See January 2013 VA Form 21-8940 and April 6, 2012 OPM Notification of Personnel Action. Because the evidence shows that he was gainfully and substantially employed until April 6, 2012, the Board finds that his service-connected disabilities did not render him unable to secure and follow gainful employment before that date; thus, a referral to the Director of Compensation and Pension for extraschedular TDIU consideration is not warranted. As of March 6, 2012, the Veteran’s combined rating increased to 80 percent based on a number of disabilities. Thus, by the time he left federal employment in April 2012, he had already met the criteria for schedular consideration of a TDIU. 38 C.F.R. § 4.16(a). Turning now to the evidence, a July 2011 audiogram, submitted by the Veteran in March 2012, noted the Veteran had asymmetric hearing loss. The audiogram contained a note that the Veteran had an OSHA reportable hearing loss in the right ear and was no longer fit to work in a noisy environment unless he was cleared by a medical provider or audiologist. Private treatment records dated March 2012 from Dr. W.M.M., a physician, noted the Veteran could not stand or sit very long due to pain in the right side of his lower back, neck, and pain and numbness in his legs. Additional March 2012 private treatment records note intermittent neck pain and episodic back pain that was worse when lifting heavy equipment. Dr. W.M.M. also noted the Veteran had a decrease in hearing acuity. Further, Dr. W.M.M. wrote a letter dated March 2012 to the Veteran’s employer that indicated the Veteran had significant abnormalities of the cervical and lumbar spine and concluded the Veteran should not walk more than 1000 feet or carry anything over 20 pounds. He recommended that the Veteran be provided a maintenance vehicle for use at work. Later March 2012 private treatment records indicated the Veteran was experiencing back pain and pain and numbness in his legs, making it difficult to walk any distance. After treating the Veteran again in March 2012, the Veteran was referred to physical therapy, and Dr. W.M.M. recommended that he not work any longer. Dr. W.M.M. reported that he had been treating the Veteran since September 2010. See April 2012 private treatment records. Dr. W.M.M. reported the Veteran had longstanding and worsening musculoskeletal disabilities. He reported that x-ray and MRI studies had been performed on the cervical and lumbar spine and showed multilevel discogenic disease in the cervical spine, with a mild distortion of the right ventral cord at the C3-4 level. Imaging studies also showed a small broad right lateral disc protrusion/osteophyte complex and facet arthropathy at L4-5 with associated right neural foraminal stenosis and contact of the transitions right L4 nerve root in the neural foramen, facet arthropathy at L5-S1, and a tiny disc bulge and face arthropathy at L3-4. A letter dated May 2012 from Dr. M.A.A., a physician, reported that the Veteran’s audiogram results indicated he had bilateral sensorineural hearing loss at 2000 and 3000 hertz dating back to 1971. Private treatment records from Dr. W.M.M. dated July 2012 note the Veteran was having urinary frequency along with neck and back pain intermittently. November 2012 treatment records again note the Veteran had neck discomfort, and the Veteran complained of pain and numbness in his legs with difficulty walking long distances. The Veteran provided a letter dated January 2013 from Dr. M.T.S., a board-certified psychiatrist and neurologist. Dr. M.T.S. reported the Veteran was a patient, who he treated for two sessions. Further, Dr. M.T.S. also reviewed the Veteran’s medical and service treatment records. Dr. M.T.S. concluded that the Veteran was “completely disabled due to his serious mental and physical problems.” Dr. M.T.S. noted the Veteran had significant low back and neck disabilities, as well as right leg disabilities which have led to a “complete emotional, psychological, and spiritual breakdown.” Dr. Dr. M.T.S. concluded that the Veteran had a “significant and complete and total medical disability weight in from both the medical and psychiatric side…” Of note, the Veteran is not currently service connected for a psychiatric disorder, and as such, an additional January 2013 letter from Dr. M.T.S. was not considered in this analysis. The Veteran submitted a VA Form 21-4192 in July 2013. He indicated he retired from federal civil service as an air conditioning equipment mechanic in April 2012. He also provided copies of his SF-50s. There is no evidence of record that he has worked since April 2012. In July 2013, the Veteran was provided a VA contract examination for his cervical spine disability. The examiner, a physician, diagnosed the Veteran with minor osteoarthritis of the cervical spine, mild spondylosis and retrolistheses, and IVDS of the cervical spine. The Veteran reported flare ups of the cervical spine disabilities, which included pain that radiated from the lower back to the right side of his neck and down into both hips and legs. When the neck pain flared, his lower back pain also flared. The Veteran exhibited signs and symptoms of bilateral mild radiculopathy. The examiner also indicated that the Veteran had incapacitating episodes lasting at least one week but less than two weeks over the previous 12 months due to intravertebral disc syndrome (IVDS). He used a cane constantly for locomotion due to back pain. The examiner noted the cervical spine disability impacted the Veteran’s ability to work, as it limited his ability to turn his head and reduced his neck flexion. He also concluded that additional contributing factors to the functional impairment of the cervical spine included pain, weakness, fatigability, and or incoordination, and that on flare ups and with repeated use over time, the Veteran’s functional impairment would increase by 5 degrees in each plane of motion. The Veteran was also afforded a VA contract examination in July 2014 for his service-connected lumbar spine disabilities. The examiner, a physician, diagnosed the Veteran with osteoarthritis of the lumbar spine, degenerative joint disease, and spondylosis of the lumbar spine. The Veteran reported symptoms of stiffness, fatigue, spasms, limited range of motion, weakness, and urinary frequency. The Veteran reported having flare ups of the lumbar spine disability that occurred frequently when he had to stand or sit for lengthy periods. Sharp pain also radiated upward to his neck and down to his hips and legs bilaterally. The examiner indicated the lumbar spine disability affected his ability to work because it limited his ability to bend, stoop, and stand for prolonged periods. Additionally, the examiner noted there would be additional loss of range of motion of approximately 5 degrees in each plane during a flare up or after repeated use over time due to pain, weakness, fatigability, and/or incoordination. The Veteran was also afforded a July 2013 VA audiological examination. The Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The Veteran described the functional impairment of the hearing loss and tinnitus as he was unable to communicate well with others, had occasional dizziness, had tinnitus and ringing constantly, could not understand what was being said to him if the other person’s back was turned, avoided loud noises and sounds, and frequently asked others to repeat themselves. Further, he had difficulty sleeping and concentrating due to the tinnitus. He also talked too loudly and had the inability to distinguish between sounds. The Veteran submitted a second letter from Dr. M.T.S. dated May 2014m, which indicated the Veteran was totally disabled and was unable to function in any capacity, short or long term, in any job-related situation. The Veteran had continuous stiffness and limited range of motion in his neck and back. He had burning pain in his cervical spine and lumbar spine, which also affected his right shoulder. He had occasional headaches and difficulty sleeping. He had pain when looking side to side and looking up and down. The Veteran could not write, sit or stand. The pain also increased when sitting or lying down at varying intervals. In a June 2014 letter, S.M.D., a nurse practitioner, noted that the Veteran was, “with certainty,” unable to work due to the symptoms of his lumbar and cervical spine disabilities that manifested in stiffness, limited motion, and pain. The Veteran was afforded another VA examination in December 2014 for the lumbar spine disability. The Veteran reported having flare ups that prevented him from bending, lifting, squatting, or standing for prolonged periods. The Veteran exhibited additional functional loss of less movement than normal, weakened movement, excess fatigability, and pain. Dermatomes sensory testing and the strait leg raise was normal, and there were no other signs or symptoms of radiculopathy. The Veteran did not have IVDS. His gait was within normal limits. The examiner, an osteopathic doctor, determined that pain, weakness, fatigability, and incoordination contributed to additional loss of function, and the Veteran experienced severe muscle spasms and pain during flares up and after repeated use over time. The examiner reported the lumbar spine condition affected his ability to work as he had difficulty with prolonged standing, walking greater than 15 minutes, bending, and lifting. In response to the December 2014 VA examination, the Veteran submitted a letter from his treating physician’s office dated February 2015. R.K., a nurse practitioner, reported that the Veteran had been treated by her since April 2014 and there had not been an improvement in the Veteran’s lumbar condition during that time. The Veteran had been treated multiple times for severe neck and back pain. R.K. also reported the Veteran had been referred to physical therapy, and the physical therapist found that the Veteran’s current functional ability for walking and moving around were between 40 percent and 60 percent impaired with a pain level of 5 on a 10-point scale, with 10 being the most painful. R.K. reported that the Veteran’s current Oswestry disability index indicated that he was 68 percent disabled from the low back pain alone. R.K. concluded that his low back disability had not improved, but in fact, had worsened. The Veteran submitted February 2015 private treatment records from R.K. R.K. indicated that he was independent in activities of daily living, but with difficulty and requiring more time to complete independently. His pain was at a 5 out of 10 on a 10-point pain scale with 10 being the most painful. He had intermittent stiffness, limited motion, burning pain in the cervical spine that traveled into the right and left shoulders, occasional headaches, and had decreased range of motion with pain on movement. At this examination, the Veteran reported difficulty writing, sitting, and standing for prolonged periods. The Veteran also reported having difficulty lifting, traveling in a vehicle, walking, and having decreased strength. An Oswestry disability index indicated he was between 60 percent and 80 percent impaired. The Veterans range of motion in the cervical spine in January 2017 was to 55 degrees and in February 2017 was to 60 degrees. Extension was measured to 7 degrees in January 2017 and 15 degrees in February 2017. Lumbar spine flexion was to 5 degrees and extension was to 10 degrees in January and February 2017. See 38 C.F.R. § 4.71a, Plate V. The Veteran was afforded another VA examination for the lumbar spine disability in March 2018. The Veteran had constant achiness and pain 7 days per week. He also reported intermittent sharpness, stabbing, and throbbing pains with certain activities. While in the examination, the Veteran was unable to sit or stand without positional changes, and he verbalized pain. He also had bilateral lower extremity numbness and tingling, worse on the right side. He did not have burning sensations or swelling. The Veteran reported daily intermittent mild to severe flare ups during which he had difficulty walking, sleeping, standing, and sitting, especially with prolonged activity. Pain was noted on examination at rest and during active movement. The Veteran also exhibited guarding or muscle spasm. The Veteran reported having intermittent lower back spasms in the previous 12 months resulting in the inability to move. The Veteran had symptoms of radiculopathy including moderate constant pain (may be excruciating at times), moderate intermittent pain (usually dull), moderate paresthesias and/or dysesthesias, and moderate numbness. Overall, the radiculopathy involved the bilateral sciatic nerve and was rated mild in nature. The Veteran also was diagnosed with IVDS of the thoracolumbar spine without incapacitating episodes in the previous 12 months. The examiner opined that the Veteran’s functional impact of his service-connected lumbar disabilities was that he would have lost 0-1 weeks of time at work in the preceding 12 months if he were working, and he would have difficulty lifting, standing, walking, and bending. Taking in consideration both the lay and medical evidence of record, to include consideration of the Veteran’s employment history and his educational attainment, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities preclude physical and sedentary employment. The medical and lay evidence discussed above indicated that the Veteran would require frequent breaks and unscheduled days off due to his cervical spine, lumbar spine, neuropathy, and radiculopathy disabilities. The evidence shows the Veteran has difficulty standing, lifting, bending, walking, turning his head up and down and side to side, has frequent muscle spasms that prevent him from moving and that affect his gait, and difficulty riding in a car. The evidence is clear that physical employment is precluded. Moreover, the Veteran has credibly reported that his lumbar spine, cervical spine, neuropathy, and radicular pain make writing and sitting for prolonged periods difficult. Further, the Veteran’s severe bilateral hearing loss and tinnitus would make it difficult for the Veteran to obtain a job that required communication with other people or the public. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, given the impact of the Veteran’s service-connected disabilities, the Veteran was unable to secure and maintain substantially gainful employment due to his service-connected disabilities. Thus. a TDIU is granted beginning April 7, 2012. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel