Citation Nr: 1806883	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-11 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a total disability rating based on individual unemployabililty (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Lewis, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from October 1972 to October 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran filed a Notice of Disagreement (NOD) in March 2012 and a Statement of the Case (SOC) was issued in February 2014. The Veteran filed his Substantive Appeal via a VA Form 9 in March 2014. Thus, the Veteran perfected a timely appeal of the issues.

In November 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file.


FINDINGS OF FACT

The Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation consistent with his education and occupational experiences.


CONCLUSION OF LAW

The criteria for the assignment of TDIU have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 

As the Board's decision to grant the Veteran's claim of entitlement to a total disability rating based on individual unemployabililty is completely favorable, no further action is required to comply with the VCAA and its implementing regulations.

II. TDIU

Legal Criteria

A total disability rating for compensation purposes 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 service-connected disabilities, provided at least one disability 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016).

For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Factual Background and Analysis 

In this case, the Veteran is service-connected for depressive disorder, not otherwise specified, which was rated as 50 percent disabling from September 16, 2010 and as 70 percent disabling from December 31, 2014; degenerative disc disease of the lumbar spine rated as 40 percent disabling; and left lower extremity radiculopathy, rated as 0 percent disabling.  The Veteran has a combined evaluation of 80 percent beginning December 31, 2014.  The Veteran's disability ratings meet the schedular criteria to render him eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16 (a).  Therefore, the determinative issue is whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, singularly or collectively. 

The evidence of record indicates that the Veteran has been unemployed since 2007 when he left his job as a packer for Array Retail Solutions. He asserts that he stopped working because of his service-connected back disability and service-connected depressive disorder. At his November 2017 Board hearing, the Veteran testified that he had taken leave under the Family and Medical Leave Act (FMLA) for the last two years of his employment. He indicated that this leave was solely due to his service-connected conditions. The Veteran testified that his job as a packer involved building displays for different companies, including putting them together and packing them in a box for shipping out. He described the position as physically demanding, requiring bending, stooping, lifting, and a lot of walking. He asserted that he was unable to perform these functions due to his service-connected back condition. He further testified that he had difficulty being around a lot of people on a daily basis in an employment setting as a result of his depressive disorder and that he experienced difficulty concentrating. See November 2017 Hearing Transcript. 

The Veteran indicated that FMLA allowed him to go home and recuperate from his condition and return to work when he was able. However, the Veteran reported that he experienced anger and pressure from his foreman and supervisors about not being at work. Id. The Veteran submitted a leave usage history for the period from September 1, 2005 to May 23, 2006 which indicated that he took approximately 301 hours of Federal FMLA during that time period. Regarding sedentary work, the Veteran indicated that he is unable to sit down for long periods of time because of his back condition which allows him to only sit down for 5 to 10 minutes before he has to get up and move around. Id. 

The Veteran stated that he attempted to seek employment after 2007 but was unable to retain gainful employment because of his physical condition. He testified that he finished high school but had not had any type of computer training or experience. The Veteran indicated that he was welder, specifically a pipefitting welder by trade, having completed an apprenticeship program through the Tennessee Valley Authority (TVA). He was employed as a pipefitter and welder for TVA from 1981 to 1986. The Veteran testified that he stopped being a welder because he could no longer bend over to weld in different positions and had trouble holding his hands up and welding things above him due to his back condition. The Veteran indicated that he then worked from 1986 to 1991 doing temporary work. These temporary jobs were all labor related and physical in nature, although the Veteran indicated that the agency which placed him attempted to find jobs that did not require too much standing or lifting. The Veteran testified that he was then unemployed from 1991 to approximately 2000 during which time he took odd jobs from a person who organized tour bus trips. The Veteran was paid roughly $100 a week during this time period. He subsequently obtained his job as a packer at Array Retail Solutions until he became unable to work in 2007. Id.  

In an August 2010 VA examination the examiner opined that the Veteran's degenerative disc disease of the lumbar spine could affect his physical employment but not sedentary employment. Additionally the examiner opined that there was no evidence that the Veteran's service-connected left lower extremity radiculopathy would impact physical or sedentary work. 

A November 2010 VA examination did not show that the Veteran was unable to perform gainful employment due to his service-connected mental condition, however it was noted that the Veteran's depression would likely impair work ability due to poor concentration and impaired drive. 

A September 2011 VA examination indicated that there was moderate impairment for physical employment secondary to back pain and reduced range of motion. The examiner noted that the Veteran would have pain on lifting, pushing, and pulling. He further stated that there was mild impairment for sedentary employment as the Veteran had indicated that he had pain on prolonged sitting. 
 
The February 2014 SOC produced by the RO cited the aforementioned VA examinations from August 2010, November 2010, and September 2011in its determination that the Veteran was capable of securing or following gainful employment as he would be capable of sedentary work. The RO further noted that although the Veteran was in receipt of Social Security disability, the evidence obtained from SSA indicated that nonservice connected conditions as well as the Veteran's service connected back condition were the basis of his being granted benefits. 
 
The Veteran underwent a number of VA mental health examinations in March 2015, June 2015, and August 2015 which all noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Among an array of noted symptoms, the examiners indicated that the Veteran would have difficulty establishing and maintaining effective work and social relationships as well as difficulty in adapting to stressful circumstances, including work or a work like setting. It is also worth noting that the Veteran suffered intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. 

An August 2015 VA back examination noted that prolonged strenuous activity results in increased pain and fatigue resulting in functional impairment with strenuous work. 

In an October 2016 examination it was noted that the Veteran's back condition impacted his ability to work based on pain on prolonged walking. 

With respect to the Veteran's ability to obtain and retain substantially gainful employment it is undisputed that his service-connected disabilities preclude any heavy, physical or manual labor. The question, then, is whether his is capable of more sedentary employment. The Veteran's Board hearing testimony as well as the observations of the September 2011 VA examiner suggests that the Veteran has difficulty sitting for long periods of time. Additionally, all of the VA mental health examinations of record indicate that the Veteran would suffer deficiencies in an occupational setting, including in terms of concentration and maintaining and establishing effective work relationships. Lastly, and significantly, the Board notes that all of the Veteran's specialized training and work experience have involved manual labor occupations of a physical nature. The Veteran's highest level of education is a high school diploma and he has indicated that he has had no additional training, such as computer skills. Thus, for all practical purposes, this limited educational background would significantly limit employment opportunities even of a sedentary nature.

Resolving doubt in favor of the Veteran, the Board finds that overall the Veteran's service-connected disabilities are cumulatively of such severity, in light of his past work experience and education, as to preclude obtaining and retaining substantially gainful employment. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990).



ORDER

Entitlement to TDIU is granted, subject to applicable law and regulations governing the award of monetary benefits. 




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs