Citation Nr: 1807356 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-16 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1958 to April 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In December 2016 this issue was remanded for further development (by a Veterans Law Judge other than the undersigned). The case is now assigned to the undersigned. [The Veteran had also appealed denials of increased ratings for postoperative residuals of a right femur fracture and surgical scar residuals. The December 2016 (now final) Board decision denied the appeals seeking increased ratings.] This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to March 21, 2011, the Veteran's only service connected disability, fracture mid third right femur, rated 10 percent, was not shown to preclude his participation in regular substantially gainful employment. 2. From March 21, 2011, the Veteran's service-connected disabilities [fracture mid third right femur, rated 10 percent and adjustment disorder with depressed mood, rated 50 percent] shared a common etiology. and were rated 60 percent, combined, but were not shown to preclude his participation in regular substantially gainful employment. 3. From June 27, 2016, the Veteran's service-connected disabilities have been rated 100 percent, combined; and are reasonably shown to have been of such nature and severity as to preclude his participation in substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to March 21, 2011 the schedular requirements for a TDIU rating were not met; and a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.16(a), (b) (2017). 2. From March 21, 2011 to June 26, 2016 the schedular criteria for a TDIU rating were met, but a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2017). 3. From June 27, 2016 the schedular criteria for a TDIU rating have been met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C. §§ 5103 and 5103A (2012) were met by correspondence to the Veteran in May 2011. The Veteran's pertinent treatment records have been secured. He was afforded VA examinations in November 2009, June 2012 and April 2013. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159 (c)(4). He has not identified any pertinent evidence that remains outstanding. Legal Criteria, Factual Background, and Analysis A TDIU rating may be assigned, where the schedular rating is less than total, when a veteran is unable to maintain a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. For purposes of determining whether there is a single disability rated 60 percent or rated 40 percent, the combined rating for disabilities sharing a common etiology is considered a rating for a single disability. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has reported that he completed a GED. Following service, he worked as a maintenance mechanic before he was self-employed, in the restaurant/vending industry. He reported that he last worked full-time in 1996. (See March 2014 June 2014 VA Form 21-8940). On November 2009 VA examination, the Veteran reported that he is unable to walk, stand or sit in one position for a long time; he reported that he can stand for 15 to 30 minutes and walk more than a quarter of a mile but less than a mile. The examiner noted that the Veteran's condition impacts on occupational activities due to problems with lifting and carrying. On June 2012 VA mental disorders examination, chronic adjustment disorder with depressed mood related to his service connected femur condition was diagnosed. The Veteran reported that he stopped working in his restaurant six months prior due to chronic pain and irritability. He reported becoming increasingly socially withdrawn with fluctuating periods of dysphoria, tearful spells, irritability, insomnia, and feelings of helplessness over the last 20 to 25years. The examiner noted that the Veteran's degree of impairment was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation. The examiner indicated that the Veteran's symptoms included depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. On April 2013 VA Disability Benefit Questionnaire (DBQ), the examiner opined that the Veteran's service connected fracture "mid-third femur, status post open reduction and internal fixation surgery" was well healed with no residual and does not render him unable to secure and maintained substantially sedentary or physical gainful employment. The examiner further opined that the Veteran's reported hip pain is unrelated to his service connected fracture. On June 27, 2016 Mental Disorders DBQ, the diagnosis was major depressive disorder. It was noted that the Veteran's degree of impairment was best summarized total occupational and social impartment. In a July 2016 addendum , the June 2016 examiner opined that the Veteran's adjustment disorder had worsened and now meets the criteria for major depressive disorder. She opined that due to the severity of the Veteran's low moods, he is unable to manage social and occupational activities. She opined that Veteran's symptoms including irritability, moodiness and decrease in work production would cause problems in interpersonal relationships and with co-workers and supervisors. The record does not reflect that the Veteran was unable to obtain and retain substantially gainful employment due to his service-connected disabilities prior to June 27, 2016. Although he had some occupational impairment due to his service-connected disabilities (most notably adjustment disorder), such impairment was encompassed by the schedular ratings assigned. Specifically, while the November 2009 examiner opined that the Veteran's service-connected femur disability impacts on his occupational activities due to problems with lifting and carrying," the record does not reflect that the service-connected disability was then such as to preclude his participation in less strenuous forms of physical employment particularly in sedentary types of employment. Notably, prior to March 2011, the Veteran's only service connected disability was his residuals of a femur fracture (and the 10 percent rating fell far short of the scheduler criteria for TDIU). Furthermore, while the scheduler criteria were met from March 21, 2011 by the combined rating for his service connected orthopedic and mental disabilities (which share a common etiology), the record shows that he was still working in his restaurant (as was noted on subsequent examination), and therefore was self-employed. Significantly, an April 2013 examiner opined that Veteran's service-connected femur disability does not render him unable to secure and maintain substantial sedentary or physical gainful employment. The first evidence in the record supporting that the Veteran is unemployable due to service connected disability is the report of a June 27, 2016 DBQ which found the Veteran's psychiatric disability productive of total occupational impairment. Accordingly, from that date (but not earlier) he is shown to have been precluded from maintaining substantially gainful employment consistent with his education and experience, and from that date (but not earlier), a TDIU rating is warranted. ORDER A TDIU rating is granted from June 27, 2016 (but not earlier), subject to the regulations governing payment of monetary awards. ____________________________________________ George Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs