Citation Nr: 18151738 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 07-19 100 DATE: November 20, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected cervical spondylosis, right upper extremity cervical radiculopathy, and left upper extremity neuropathy disabilities are reasonably shown to prevent him from obtaining or following substantially gainful employment. CONCLUSION OF LAW The criteria for a schedular TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1969 to December 1971. In a November 2013 decision, the Board remanded the Veteran’s claim for a TDIU. And in September 2017, the Board denied the Veteran’s claim for a TDIU as well as increased ratings for the Veteran’s service-connected right upper extremity radiculopathy and left upper extremity neuropathy. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Veteran, through his attorney, and the Secretary of VA (the parties) entered into a Joint Motion for Partial Remand (JMPR) in which they moved the Court to vacate and remand only the portion of the September 2017 Board decision to the extent that it denied the Veteran’s claim for a TDIU. The issue has now returned to the Board for further development and adjudication. Entitlement to a TDIU. The Veteran alleges that his service-connected disabilities render him unable to obtain and sustain gainful employment. A TDIU rating 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 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16 (a). In considering whether TDIU is warranted, neither the veteran’s nonservice-connected disabilities nor his age may be considered. 38 C.F.R. § 4.19. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran’s service-connected disabilities include cervical spondylosis (rated as 20 percent from November 1, 2001, and as 30 percent from July 26, 2004), right upper extremity cervical radiculopathy associated with cervical spondylosis (rated as 30 percent from July 26, 2004), and neuropathy of the left upper extremity associated with cervical spondylosis (rated as noncompensable from November 1, 2001, and as 20 percent from July 26, 2004). As of November 1, 2001, the Veteran’s combined evaluation was 20 percent and 60 percent from July 26, 2004 with the bilateral factor. Furthermore, as the Veteran is service-connected for his bilateral upper extremities and as such are service-connected secondary to the Veteran’s cervical spondylosis, they are considered one disability under 38 C.F.R. § 4.16(a). Thus, the schedular criteria for TDIU are met, and the only question is whether such rating is substantively warranted. Post-service treatment records reflect the Veteran’s complaints of pain and inability to perform his vocational duties. A December 1990 treatment note reflects that upon examination extension of the Veteran’s neck aggravates his pain, but he was told he could return to light duty. A June 1994 radiologic consultation reflects that the Veteran suffered a burning pain in both hands, and an additional report in June 1994 noted moderate interspace narrowing and neural foramina spurs at C4-6 with normal curvature which altered his motion consistent with muscle spasms. A March 1998 report of medical history reflects the Veteran’s reports of hand pain, left shoulder pain radiating down his arm, cervical spondylosis and pain with motion of the upper extremities. A May 2001 treatment note reflects that the Veteran reported that his hands hurt all the time and felt tight. An August 2001 treatment note reflects the Veteran’s reports of constant pain and burning sensation, his hands were sore and tingled, nothing improved his symptoms and the limitation of his neck was limited. A September 2001 treatment note reflects that the Veteran worked as a carpenter but that he was unable to lift anymore, and that he had severe pain with cramping in his hands whenever he tried to use his carpentry tools. An additional September 2001 treatment note reflects that the Veteran reported neck stiffness with decreased range of motion and bilateral upper extremity discomfort, burning in his hands, difficulty with grip and fine motor strength and functioning, and cervical radiculopathy. A November 2001 treatment note reflects the Veteran’s reports of a history of pain and numbness as well as difficulty flexing his fingers and occasional left upper extremity pain. Extensive degenerative joint disease of the spine, foraminal stenosis and cervical radiculopathy with chronic denervation and polyphasic potentials were also noted. A February 2002 treatment note reflects the Veteran’s reports of difficulty holding objects due to weakened grip strength, trouble moving his arms and inability to work. Degenerative joint disease with mild spinal stenosis of the cervical spine was noted. A June 2002 note reflects that the Veteran’s grip remained weak. An August 2002 note reflects that the Veteran continued to have sharp pain in his neck which radiated down into his arms and that he had difficulty holding things in his hands, and could not lift anything. September 2002 treatment notes reflect that the Veteran had daily neck pain with limitation of range of motion, numbness in his hands and use of a cane. April and May 2005 treatment notes reflect the Veteran’s complaints of continuous pain, numbness, and tingling in both hands and his arms, weakness, stiffness, locking up and instability and difficulty with activities of daily living. In January 2011, the Veteran underwent a vocation factors analysis. The examiner found that the Veteran’s conditions would not permit him to return to past relevant work. The examiner also noted that the Veteran could perform light exertional work, however the Veteran would be restricted to unskilled work. In February 2011, the Veteran underwent a VA Neurological examination. The examiner noted left upper extremity neuropathy, numbness, tingling and pain. The examiner also found pain in the Veteran’s hands and decreased sensation and achiness. In February 2011, the Veteran also underwent a VA Cervical Spine examination, which revealed decreased mobility in his neck, especially while driving. The examiner also noted that the Veteran had been unable to work for the prior 7-8 years and opined that the Veteran would have less stamina and endurance with any physical type of work. A September 2014 Vocational Assessment revealed that the Veteran could not sit or stand for long periods of time and could not lift objects. The examiner noted that the Veteran underwent two surgeries in 2002, and that after the surgeries the Veteran’s symptoms and pain returned which caused him to not be able to raise his arms without pain. The examiner opined that it was at least as likely as not that the Veteran’s disabilities prevented him from securing a substantially gainful occupation. In April 2015, the Veteran submitted a claim for a TDIU and noted that he worked from 1994 to 2001 as a carpenter and noted that his service connected disabilities do not allow him to lift things above his chest and he could not turn his head or contort his body without great pain. The Veteran further noted that he could no longer volunteer or bowl and had pain all day. In June 2015, the Veteran submitted a statement in which he described his symptoms and their impact on his life. He reported an inability to lift his arms above his head, difficulty turning his head, pain radiating into his shoulders and entire arms, inability to walk and swing his arms, inability to perform normal activities that involve pushing, moving, or lifting. He reported numbness, and difficulty gripping. He further stated that he required an assistive device to help him put on his socks. An August 2015 Occupational Therapy Consult reflects that the Veteran had difficulty lifting his left arm and reported an insidious onset of left shoulder pain. An October 2015 Occupational Therapy Progress note reflects that the Veteran had difficulty lifting his left arm. In January 2017, a VA Medical Opinion was obtained. The examiner opined that the Veteran’s service connected conditions would not preclude him from obtaining and sustaining gainful employment. However, the examiner went on to explain that the Veteran would be best served by securing employment in a non-physically demanding field. Furthermore, the examiner noted that the Veteran could not do any work that required overhead lifting, gripping or grasping objects as well as prolonged use of his hands. In January 2017, the Veteran also underwent a Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ). The examiner again noted that the Veteran was capable of obtaining and maintaining employment in an environment that did not require overhead lifting, gripping/grasping of objects or prolonged use of his hands. In August 2018, the Veteran underwent another Vocational Assessment. The examiner reviewed the Veteran’s claims file and interviewed the Veteran. The Veteran reported that he was unable to reach overhead, had limited range of motion in his neck, had sleep disturbances as well as fatigue due to his neck and upper extremity pain, had to take frequent breaks throughout the day, had difficulty with activities of daily living and was unable to lift anything that weighed more than 10 pounds. The examiner noted that prior to the Veteran’s service, he graduated high school and completed one semester of junior college. He did not obtain a certificate or any further training. While in the military he worked as mechanic, truck driver, and medic. After the Veteran’s discharge, he worked in a steel mill and as a carpenter. The examiner opined that after a thorough review of the medical evidence as well as the Veteran’s education and training, that it is more likely than not that the Veteran has been unable to secure and follow a substantially gainful occupation due to his service-connected conditions. In light of the above, the Board finds that the evidence reasonably shows that the Veteran’s service-connected disabilities preclude obtaining or following substantially gainful employment. While the Board is cognizant that the February 2017 examiner found that the Veteran’s conditions would not preclude him from obtaining and sustaining gainful employment, the rationale that the examiner used to substantiate his opinions seems to support that the Veteran could not engage in physical employment and that sedentary employment would also be exceedingly limited. Furthermore, the majority of the evidence of record, supports the Veteran’s contentions. In addition, the Veteran’s training and education do not prepare the Veteran for a sedentary or skilled position. Therefore, the Board finds that in light of the evidence of record and the Veteran’s training and education a TDIU is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel