Citation Nr: 18149809 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 10-05 199 DATE: November 13, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran had active service from November 1967 to December 1969. He died in December 2016 during the pendency of the appeal. The appellant is his surviving spouse and is a properly substituted party to this appeal. 2. The Veteran’s combined service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In connection with this appeal, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the regional office (RO) in May 2012. A copy of the transcript has been associated with the record. This appeal was most recently before the Board in May 2015, when it was remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Previous Board decisions included historical procedural recitations, and they are incorporated by reference at this time. 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. 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). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Here, the Veteran has met the preliminary schedular criteria for entitlement to a TDIU since June 29, 2005. Effective that date, he was service connection for the following: pes planus, calcaneal spurs, with right foot surgeries, rated at 50 percent; degenerative disc disease (DDD) with low back pain, associated with right foot pes planus, rated at 20 percent; left ankle pain associated with pes planus, rated at 10 percent; and right ankle pain associated with pes planus, rated as 10 percent. His combined rating was 70 percent, and as such, he met the schedular threshold for a TDIU since that time. Therefore, the threshold question is whether the combined impact of the Veteran’s service-connected disabilities precluded his substantial and gainful employment. In his application for a TDIU, the Veteran reported that he last worked in property management as a director in March 2005, and had a college education. His most recent employer indicated that he left his last position after over ten years due to restructuring. At a February 2007 VA examination, the Veteran complained of foot pain, and swelling, as well as pain which radiated into his lower back. He stated that he had been unemployed for almost three years, and that he was unable to perform his job duties as they involved traveling, and frequent walking. The examiner opined that the Veteran’s diagnoses affected his daily activities and occupation because of his inability to walk and sit for extended periods of time. June 2007 records from the Social Security Administration (SSA) indicated that the Veteran was granted full disability benefits for multiple disabilities, to specifically include his service-connected lumbar spine and calcaneal heel spurs. The favorable SSA decision found that he was unable to lift or carry more than five pounds, sit for up to two hours in an eight-hour work, or stand or walk for longer than one hour in an eight-hour work day. SSA concluded that his residual functional capacity conformed to the demands of “less than sedentary work,” and that he lacked transferrable skills. At a September 2007 VA back examination, the Veteran reported significant pain after prolonged sitting, standing, and bending, with treatment of Oxycontin up to three times per day. April 2008 VA treatment records indicated that although he was under constant medication treatment with Oxycontin, there was not always relief. Further, he reported constant grogginess after the medication. In support of his claim, the Veteran and appellant submitted a December 2014 vocational assessment by a private examiner. He reported an inability to stand or walk without a cane, walker, or wheelchair, and that his constant pain, in conjunction with his pain medication, affected his abilities to focus and concentrate on any task before him. The examiner interviewed the Veteran and reviewed his entire claims file, before opining that his service-connected disabilities more likely than not impacted his ability to follow substantial, gainful work. In so opining, the examiner reasoned that the Veteran’s VA and private treatment records were riddled with complaints related to his foot, back and ankle disabilities, to include eleven surgeries and constant therapy and pain medication. The examiner further reasoned that the calcaneal heel spurs specifically, with associated foot surgeries, would diminish his ability to work due to multiple medical appointments and consistent treatment. In May 2016, a VA vocational assessment was ordered for the Veteran in accordance with the prior Board remand. This examiner also interviewed the Veteran and reviewed his entire record. The examiner noted that the Veteran was wheelchair bound and unable to mobilize properly. She then reported an inability to make a determination on the specific effects of the Veteran’s disabilities and their impact on his employment. She did, however, report that the Veteran required close supervision to maintain safety due to multiple medical diagnoses, and that he required assistance with most of his activities of his daily living including bathing, dressing, grooming and ambulating. She reported that he had difficulty negotiating household distances, and constantly used chair lifts and a wheelchair, with the assistance of a full-time home health aide, or his wife. In May 2018, after the Veteran’s death, the appellant submitted another private vocational assessment. The clinician interviewed the appellant and reviewed the Veteran’s entire record. The clinician noted consistent treatment for low back pain, foot pain, and ankle pain, which denoted constant pain levels of 9 out of 10 and frequent surgeries, with daily medication. The appellant reported that the Veteran retired, in large part, due to excruciating pain levels in his feet, ankles, and back, and that he was unable to walk without elevating his feet for comfort and to reduce swelling. The appellant further reported that prior to his death, the Veteran would only be able to sit with pillows behind him, with his feet elevated to waist level. He was also unable to stand or walk for longer than 15 minutes, drive, or carry more than five pounds at a time. The clinician found that the Veteran’s prior occupation registered as light physical demand but that he would have been unable to partake in even sedentary employment. The clinician reasoned this was due to diminished concentration, attention, persistence, and pace, which were caused by his levels of pain from his feet, ankle and back pain, as well as his required use of narcotic medications. The clinician further reasoned that the Veteran would have been unable to maintain gainful employment due to his inability to remain stationary at a workstation for any extended period of time. Next, the clinician opined with respect to absenteeism that the Veteran would have been subject to frequent absences or tardiness due to his inability to partake in daily activities such as grooming, as well as his constant pain and medical appointments. Last, the clinician opined that the Veteran’s service-connected disabilities alone would more likely than not have rendered him unable to secure and follow substantially gainful employment. The clinician cited to VA treatment records reflecting increased symptomatology in the Veteran’s feet, low back, and ankles at the time he stopped working, along with his inability to stand, sit, or walk for extended periods of time, his need to elevate his feet, expected absenteeism, and pain related decreased concentration and productivity from prescribed narcotics. Based on the evidence, the record supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities is of such nature and severity as to preclude substantially gainful employment prior to his death. In this regard, the Veteran and appellant have provided competent and credible evidence as to how his symptoms interfered with his ability to work. Thus, the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel