Citation Nr: 1817792 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 16-35 653A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Michele Zimbler, Agent ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an RO rating decision. In April 2015, the RO denied the Veteran's formal claim for a TDIU. The Board notes, however, the Veteran filed his formal application for TDIU benefits in December 2012, but the RO considered the issue of entitlement to a TDIU as part and parcel to his appeal of the March 2012 rating decision related to the increased rating claim for back disability (see May 2013 Notification Letter), which is consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). The April 2016 statement of the case indicates that the claim on appeal was filed in September 2011 and denied in March 2012. The Board notes that this appeal also arises from a perfected appeal of the issues of an increased rating for back disability and service connection for hearing loss and tinnitus. However, in the July 2016 substantive appeal (Form 9), the Veteran limited his appeal to the TDIU issue. See 38 C.F.R. § 20.200 (2017) (An appeal consists of a timely filed notice of disagreement in writing and after a statement of the case has been furnished, a timely filed substantive appeal.). The Board additionally notes that the Veteran filed a notice of disagreement in July 2016 with the December 2015 rating decision that reduced his service-connected back disability from 60 to 20 percent, effective from March 1, 2016. However, in a November 2017 rating decision, the RO found clear and unmistakable error in the December 2015 rating decision and reestablished the 60 percent rating for the back disability. Thus, a statement of the case is not necessary and no further action is necessary on this issue. See cf. 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238 (1999). 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). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is unable to work due to his service-connected back, wrists and foot disabilities. A TDIU 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 service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). In this case, the Veteran is service-connected for residuals of low back fracture, rated as 60 percent disabling, right lower extremity with drop foot related the back disability, rated as 30 percent disabling, right and left wrists residuals of fracture, each rated as 10 percent disabling, and unspecified depressive disorder associated with right lower extremity with drop foot, rated 30 percent disabling from June 2013. Thus, the Veteran has had one disability rated as 60 percent disabling, and a combined rating of 70 percent (80 percent from June 2013) throughout the appeal period, thus meeting the minimum schedular requirements for TDIU. 38 C.F.R. § 4.16(a). In a December 2012 TDIU application (Form 8940), the Veteran reported his back disability prevented him from working and that he last worked in January 1982 as a steel mill supervisor. A July 2013 VA examination report reflects the Veteran reported an increase in intermittent back pain when doing activities and that he limits his standing and walking up to ten minutes at a time to avoid aggravating back pain. The impact on the Veteran's ability to work was limitation in activities, such as standing or walking for more than 10 minutes, doing household work, such as washing dishes. The Veteran lives with his wife who does the house cleaning and cooking. A January 2014 VA wrist examination reflects the examiner noted the Veteran's wrists would impact his ability to work due to decreased manual dexterity and problems with lifting and carrying. A January 2014 VA peripheral nerves examination notes the Veteran's right foot drop would give him a moderate amount of difficulty with standing for protracted periods of time, repetitive bending, stooping, or lifting. The Veteran uses a wheeled walker for ambulation and his gait was altered in the form of a lateral swing out of the right foot to accommodate a dropped foot. The examiner noted the impact on his ability to work would be decreased strength in mobility in the lower extremity. In an October 2014 TDIU application (Form 8940), he reported he last worked in March 1982 as a supervisor. He reported he completed high school and three years of college. A February 2015 VA examination report reflects the Veteran reported constant pain in the lower back with right drop foot. He described it as sharp pain at a level of 6/7 out of 10 and decreases to 2 out of 10 after he uses the ice and lies down. He reported flare-ups with any activity and lasts for up 30 minutes with ice and lying down and he needs to get off of his feet. He reported flare-ups with bending. He reported very frequent breaks from the activity causing flare up function. With flare ups, he is not able to walk or stand. Without flare ups, he uses a rolling walker when he is out of his home. He uses things within his home to get around and is only able to walk short distances before he needs to sit. He is able to stand approximately 5 minutes or less with holding onto his walker or kitchen counter. With regard to his activities of daily living and functions, the examiner noted the Veteran is not able to complete a task without taking a break or several breaks in between. The Veteran has difficulty with dressing and putting on his socks and shoes. He also trips with foot drop while walking with his rolling walker. He needs to be on flat terrain and needs to be in a safe environment due to the foot drop and need for narcotic pain medication. He also needs to change his position frequently, use ice, and lie down frequently. He also cannot lift or push. The examiner noted the Veteran retired in 1982 from a steel mill when he lost his job. He was a janitor for a year and was able to do some light things and he quit when they wanted him to move file cabinets and rearrange the office. The examiner noted severe radiculopathy in the right leg. He uses a brace weekly, a wheeled walker constantly, and a back brace when he leaves the home. With regard to his service-connected right and left wrists fracture residuals, the Veteran reported he did not have pain in his wrists and that he does not do anything to test his wrists. There was no impact on his activities due to his wrists. A March 2015 VA treatment record notes the Veteran had a tendency to stay in bed, which exacerbates his back pain. In an October 2015 statement, the Veteran's spouse stated that the Veteran cannot perform manual labor, but still tries to be more active. She indicated he has difficulty getting out of the bed and uses ice packs to lessen the pain. They can no longer arrange activities or spend time with friends. The Veteran also submitted a statement at that time and explained that his pain medicine doubled, uses ice packs, and he cannot do simple tasks, like unloading the dishwasher. A June 2016 magnetic resonance imaging scan of the lumbar spine reflects severe spinal canal stenosis at L3-L4, secondary to disc bulge and posterior element hypertrophy and arachnoiditis in the caudal thecal sac. 2015 to 2017 VA treatment records reflect the Veteran continued treatment for back pain and drop foot. Given the significant impairment caused by the Veteran's service connected back disability on his ability to work, as indicated by the lay and medical evidence, and his limited education and occupational experience, the evidence is at least evenly balanced as to whether his service-connected disabilities precludes him from securing or following a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(a). ORDER Entitlement to a TDIU due to service-connected disabilities is granted, subject to controlling regulations governing the payment of monetary awards. ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs