Citation Nr: 18158572 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 09-06 453 DATE: December 17, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective May 1, 2014. FINDING OF FACT 1. The Veteran is currently service connected for neck and right shoulder arthritis, rated as 20 percent disabling; herniated nucleus pulposus of the lumber spine, rated as 20 percent disabling; right leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, rated as 20 percent disabling; left leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, rated as 20 percent disabling; hemorrhoids, rated as noncompensable; and scar, residual cervical spine surgery associated with arthritis, neck and right shoulder, rated as noncompensable. The combined rating is 60 percent from November 30, 2007, exclusive of a temporary total convalescent rating from January 29, 2008 to February 29, 2008. 2. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation from May 1, 2014. CONCLUSION OF LAW The criteria for a TDIU have been met from May 1, 2014. 38 U.S.C. §§ 1110, 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1971 to October 1995. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In September 2017, the Board denied referral of the Veteran’s TDIU claim on an extraschedular basis. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) which in a June 2018 order granted a joint motion for partial remand (JMPR) vacating the Board’s September 2017 decision with respect to TDIU, for action consistent with the JMPR. Specifically, the Court determined that the Board had failed to properly consider 38 C.F.R. § 4.16(a)(3) whether the appellant’s disabilities affected the orthopedic single body system and thus qualify under subsection (a) as they combine to a 60 percent disability. Additionally, the Court determined that the Board failed to properly consider whether referral for consideration of a TDIU on an extraschedular basis was warranted. In November 2018, the Veteran submitted additional evidence, which has not yet been considered by the RO. However, the Veteran waived initial RO consideration of that evidence. Entitlement to a TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Total disability is considered to exist when there is present any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. TDIU may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities are rated as follows: neck and right shoulder arthritis, rated as 20 percent disabling; herniated nucleus pulposus of the lumber spine, rated as 20 percent disabling; right leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, rated as 20 percent disabling; left leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, rated as 20 percent disabling; hemorrhoids, rated as noncompensable; and scar, residual cervical spine surgery associated with arthritis, neck and right shoulder, rated as noncompensable. The combined rating is 60 percent from November 30, 2007, exclusive of a temporary total convalescent rating from January 29, 2008 to February 29, 2008. The Board finds that the Veteran’s neck and right shoulder arthritis, herniated nucleus pulposus of the lumbar spine, right leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, and left leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, may be considered disabilities of the musculoskeletal system for the purposes of establishing one disability rated at least 60 percent under 38 C.F.R. § 4.16(a). He therefore meets the schedular criteria for a total rating for compensation purposes based on individual unemployability under the provisions of 38 C.F.R. § 4.16. As the Veteran now meets the schedular criteria for a total rating for compensation purposes based on individual unemployability, there is no need to discuss referral for extraschedular consideration. The issue, thus, becomes whether the Veteran’s service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The record contains a large volume of medical and lay evidence and, of necessity, the Board will summarize it, focusing on the most significant records. The record reflects that the Veteran was employed until 2014 as a mail carrier supervisor. An August 2006 VA examination report reflects that the Veteran worked as a postal service supervisor and had not lost any time from work but had limitations in that he could no longer go out on the street to supervise mail carriers which was part of his job. A January 2008 VA examination report also reflects that the Veteran was working full time in the same occupation and is negative for work lost due to the disabilities on appeal, other than following spinal surgery. A January 2009 VA examination report indicates that the Veteran continued to work as a supervisor at the Post Office and that he had no problems with his occupation and his current right shoulder lack of discomfort. The examiner noted that the Veteran was able to perform his usual activities of daily living regardless of his right shoulder. An April 2010 examination report reflects that he had not lost any time from work during the last 12 months. A July 2011 VA clinical record reflects that the Veteran was still working but “plans to retire within the next year.” A May 2012 VA examination report reflects that the Veteran did not report any time lost from work in the past 12 months due to back pain/impairment. Regarding functional impact, the examiner noted that the Veteran was a supervisor at a post office in a sedentary job and that he has not been able to go out on the street to supervise/observe letter carriers due to his lumbar spine 2008 postsurgical numbness of right leg, weakness both lower legs. A March 2015 report reflects that that the Veteran reported that he retired due to his bilateral lower extremity weakness. A June 2017 VA examination report reflects that while the Veteran’s peripheral nerve condition would result in difficulty climbing stairs, prolonged walking, and keeping balance when walking due to foot drop and weakness in the feet, it would not impact his ability to work. On a June 2018 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked on April 31, 2014 as a delivery supervisor. The Veteran indicated that he worked as a delivery supervisory for the United States Postal Service (USPS) from 1997 to April 31, 2014. The Veteran noted that he worked in data entry for the USPS from February 2015 to March 2015. The Veteran reported that his highest level of education was one year of college. In support of his claim, the Veteran submitted a September 2018 vocational assessment report from a vocational consultant. K.P. MA, ADMS, opined that it was as least as likely as not that the Veteran was unable to secure and follow substantially gainful employment as a result of the combination of his service-connected conditions. K.P. indicated that, “a worker would need to remain seated most of the time with only short breaks to make copies, retrieve documents, or a short stretch break not exceeding more than 6 minutes per hour to remain competitive in sedentary type employment. Alternating between sitting and standing every 20-30 minutes would not be generally tolerated in substantially gainful sedentary employment. The Veteran described falling approximately once a month due to his service-connected leg weakness. One fall could be overlooked but any additional fall would likely result in termination due to a safety hazard in competitive employment, in my vocational opinion.” Additionally, K.P. indicated that “particularly, the combination of his service- connected lumbar spine, neck, right shoulder, and bilateral leg weakness conditions, he would be unable to perform even the basic requirements of sedentary employment. His past work was light in physical demand and he does not possess any skills that would readily transfer in to a sedentary position. He has been unable to perform any substantially gainful employment since he retired in April 2014. As noted above, the work performed in 2015 was not consistent with substantially gainful employment.” The Board finds K.P.’s opinion to be highly probative because it is based on a thorough review of the record, an interview with the Veteran, and is supported by a detailed rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Significantly, the evidence clearly demonstrates that as a result of the Veteran’s combination of his service-connected lumbar spine, neck, right shoulder, and bilateral leg conditions, he is unable to perform even the basic requirements of sedentary employment. This conclusion is bolstered by the findings in K.P.’s September 2018 vocational assessment, as outlined above. The Board finds that the evidence, including the September 2018 vocational assessment, supports a finding that the Veteran’ service-connected disabilities have combined to render him unable to secure or follow substantially gainful employment. Here, the Veteran met the schedular criteria for a TDIU rating effective from November 30, 2007. See 38 C.F.R. § 4.16(a). As discussed above, his neck and right shoulder arthritis, herniated nucleus pulposus of the lumbar spine, right leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, and left leg weakness as secondary to the service-connected herniated nucleus pulposus of the lumber spine, may be considered disabilities of the musculoskeletal system for the purposes of establishing one disability rated at least 60 percent under 38 C.F.R. § 4.16 (a) from this date. The persuasive evidence in this case demonstrates that the Veteran became unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities on May 1, 2014. He is shown to have been gainfully employed prior to that date. VA and private opinions clearly show he has been unemployable since then. Therefore, TDIU is warranted from May 1, 2014. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel