Citation Nr: 19124231 Decision Date: 04/02/19 Archive Date: 03/31/19 DOCKET NO. 10-23 437 DATE: April 2, 2019 ORDER Entitlement to a total disability rating based on an individual unemployability (TDIU) is denied. FINDING OF FACT No competent and credible evidence has shown that the Veteran is unable to secure or maintain substantially gainful employment because of her service-connected disabilities and the best evidence in this case provides evidence against this claim. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1114, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 o January 1990. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2017, the Board remanded the case to the RO for further evidentiary development. In a December 2017 Board decision, the TDIU claim was denied. In January 2018, the Veteran filed a notice of appeal with the United States Court of Appeals for Veterans Claims (CAVC). In June 2018, the parties filed a joint motion for a partial remand (JMPR). The parties stipulated to the withdrawal of the Veteran s claims of entitlement to a rating in excess of 10 percent for painful motion of the right knee, and rating in excess of 10 percent, prior to August 2, 2017, and in excess of 20 percent, beginning August 2, 2017, for medial collateral ligament strain of the right knee. However, the parties stipulated that in denying entitlement to a TDIU, the Board considered and discussed findings in May 2009, April 2012, and August 2017 VA examinations, which determined that the Veteran is not precluded from obtaining or maintaining substantially gainful employment, but did not discuss an August 2014 VA examination, which contains evidence favorable to the Veteran. Based on the above, for these reasons, the parties stipulated that a vacatur and remand of the December 2017 portion of the Board decision that denied the TDIU claim was warranted. In June 2018, CAVC granted this motion for the partial remand. In this regard, the Board notes that in the reconsideration of this TDIU clam, it has considered and discussed all the probative evidence of record. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2018). A finding of total disability is appropriate when there is any present impairment of mind or body 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), 4.15 (2018). 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more 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 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2018). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). The Veteran is currently service connected for transabdominal hysterectomy, with bilateral salpingo-oophorectomy, at a 50 percent disability rating; right knee medial collateral ligament strain, at 20 percent disability rating; status post fracture, distal interphalangeal joint, right ring finger (dominant), at a 10 percent disability rating; right knee painful motion, at a 10 percent disability rating; limited motion of digits of right hand due to degenerative arthritis, right ring finger distal joint (previously rated as status post fracture, distal interphalangeal joint, right ring finger (dominant)), at a 10 percent disability rating; abdominal scar from total abdominal hysterectomy, with bilateral salpingo-oophorectomy, at a non-compensable rating; and plantar calluses, bilateral feet, at a non-compensable rating. In this regard, the Veteran has made little reference to the transabdominal hysterectomy, with bilateral salpingo-oophorectomy, her highest rating, instead suggesting that it is her knee and hand that are at the core of her unemployment. Even Dr. F.F., who will be cited below, make little reference to this disability. This, as a result, must be the Board’s focus. The Veteran’s combined disability rating, inclusive of the bilateral factor, is 70 percent. See 38 C.F.R. §§ 4.26, 4.25 (2018). While the Veteran has met the minimum percentage requirement, under 38 C.F.R. § 4.16(a), for TDIU consideration, the central inquiry is whether the Veteran’s service-connected disabilities alone are of enough severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not sufficient. As a matter of fact, a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, and not whether he or she can find employment. Hoose v. Brown, 4 Vet. App. 361 (1993). In its most recent decision, the United State Court of Appeals for Veterans Claims (CAVC) held that “[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to”: (1) The veteran's history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 17-0781 (March 2019). However, consideration cannot be given to the Veteran’s age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Additionally, “By discussing [the] potentially relevant factors, we don’t create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it.” Ray v. Wilkie, 17-0781 (March 2019). The Veteran asserts that she is unemployable as a result of her service-connected disabilities. Specifically, she contends that all of her jobs require a great deal of standing and rapid arm movement; and that she is unable to stand, using a walker cane and knee braces. See July 2014 Form VA 21-8940 Application for Increased Compensation Based on Unemployability (TDIU application). She also asserts, in pertinent part, that “the evidence of record and evidence submitted . . . establish that the Veteran has not worked in any capacity since 2004.” See December 2018 Correspondence. However, the evidence of record reflects that the Veteran provided numerous inconsistencies, including statements about the last date of employment and/or the last date she became too disabled to work, as well as statements about the impact of her disabilities on her employment. The Board has reviewed the Veteran’s many statements, over several years, with great attention: The Veteran has provided information over a period of time which has been inconsistent. Specifically, the Veteran filed a TDIU Application in April 2009. In her application, the Veteran asserted that she is unable to secure or follow substantially gainful occupation as a result of her right foot, right knee and right ring finger. Further, she disclosed that she became too disabled to work in December 2002, and the last time she worked full-time was in 2002. Further, she reported that she worked for a temp agency, Pro Staff, as an assembly worker; she separated from her last place of employment as a result of her disability; and that she tried to obtain employment since she became too disabled to work. Subsequently, the Veteran submitted another TDIU application in July 2014, in which she disclosed that the last she worked full-time and the last time she became too disabled to work was in 2004. In her TDIU application, she further disclosed that her last place of employment was at Adam McClure, where she worked in assembly line, from 2002 to 2004, and that she separated from her last employment as a result of her disability. In December 2018, the Veteran submitted an affidavit, indicating that she had not worked in any capacity since she left her job as an assembly worker at Adam McClure since 2004. She clearly indicates that the basis of her unemployment was her service connected hand and knee. The Board has various concerns with this affidavit. First, no employment verification from this employer, including confirmation from the employer that the Veteran’s termination from employment was a result of knee and/or hand disabilities, has been submitted as evidence. Second, and pertinently, prior to both TDIU applications, in an October 2005 Work Activity Report, filed with Social Security Administration (SSA), the Veteran disclosed that she had not worked since September 2002. While she clarified that she worked while disabled, the Veteran also disclosed that she worked at Staff Force from June 2003 to March 2005, which is period after the 2004 date she alleges to have last worked. Additionally, a subsequent November 2005 Work Activity Report, filed with SSA, reflects that the Veteran disclosed that she worked for Staff Force Temp Service (Adam McClure) from October 2002 to March 2005; then Randstad Temporary Staffing from April 2005 to May 2005; and then, thereafter, Culinaire International, from July 2005 to August 2005, for 11 days. See also September 2005 TDIU Application (reflecting similar work history with dates, compared to the November 2005 work activity report). More inconsistencies are noted, including statements about the reason for the Veteran’s termination from employment. Specifically, in an initial TDIU application from September 2005, the Veteran contended that she was unable to secure or follow substantially gainful employment due to service-connected right knee and abdominal hysterectomy. Thereafter, a May 2008 VA examination report indicates that the Veteran last worked in 2004 on assembly line, where she had worked for a year, but had to quit because of a non-service connected back problem. Whereas, an August 2008 VA examination report states that she has been unemployed since 2001; she worked for temporary employment agencies; and that her last temporary job was in a warehouse, where she did not return, due to increased knee and low back pain, with standing. Then, a May 2009 VA examination report noted that the Veteran had not worked since 2000, when she was employed at a warehouse doing heavy lifting. More discrepancies and inconsistencies about details pertaining to her disabilities are also noted. Specifically, the August 2008 VA examination report, which reflects that the Veteran was receiving social security disability, is contrary to September 2005, April 2009, and July 2014 TDIU application forms, as they reflect that the Veteran answered, “no”, when the TDIU application form asked whether she “receive[s]/expect[s] to receive disability retirement benefits.” A SSA disability determination reflects that the Veteran was receiving disability benefits for an unrelated, non-service connected disability. See December 2005 Disability Determination and Transmittal. Very importantly, in the most recent affidavit, the Veteran makes no reference to the problems that provided the basis for SSA benefits (about the same time she stopped working). This clear omission undermines the Veteran’s reliability with the Board. We can not overlook such a unblemished omission. Two points are significant at this moment: (1) The Veteran failed to reveal she was receiving SSA benefits three times, when specifically asked; and (2) she receives those benefits due to nonservice disabilities. Both facts provide evidence against her claim. With respect to employment verification, the Veteran contacted VA and clarified that she listed the incorrect name for an employer on her April 2009 TDIU Application, and that the employer’s name is “Sure Staff”, and not “Pro Staff”. See April 2009 VA Report of Contact. Around the same time, she also indicated that Pro Staff Temporary Hiring Company was no longer in business and that she was unable to verify unemployment with this agency. See April 2009 Statement in Support of Claim. However, despite clarifying the correct name of her employer, she did not execute a form VA 21-4192: Request for Employment Information in Connection with Claim for Disability Benefits (Employment Verification) for Sure Staff and/or Adam McClure, even though she initially attempted to execute an employment verification for Pro Staff. The nature, severity, and functional impairment of the Veteran’s disabilities are indicative of her unemployability, based on medical reports, findings, opinions, and supported rationale in numerous VA examinations in her claims file. Specifically, when the Veteran underwent a VA examination for joints (shoulder, elbow, wrist, hip, knee, and ankle) in August 2008, a VA examiner indicated that the Veteran was independent in activities of daily living, in which she does a little bit of driving. The VA examiner noted that though she did not have incapacitating flare-ups of knee pain, the Veteran had increased limitation of repetitive use. Additional details are provided about the functional impairment of the Veteran’s service-connected disabilities in subsequent VA examinations. Specifically, for example, at her general VA examination in May 2009, she was evaluated for her hand, joints, and feet, as it relates to employability. Upon conducting a physical examination of her right hand and right knee, a VA examiner noted impressions of 1) fracture of the distal interphalangeal joint of the right ring finger, “healed with conservative treatment, with subsequent developed of degenerative joint disease of the right fourth finger, decrease in grip of the right hand, but minimal disability; 2) calluses of the ventral surfaces of the feet with minimal disability; and 3) chronic right knee sprain with moderate symptoms, minimal physical abnormalities, and minimal disability.” (Emphasis added). In this regard, the VA examiner opined that the problems with the Veteran’s calluses, right knee, and right hand would not render her unemployable. When the Veteran underwent a VA examination for the hand, thumb, and fingers in October 2009, the VA examination noted findings of abnormalities, namely joint space narrowing of dip joint, ring and small finger and the metacarpophalangeal joint of the thumb. However, the VA examiner determined that the effect of these conditions on the Veteran’s usual occupation and daily activities was a moderate impairment. Additionally, at this same VA examination, the VA examiner undertook an examination of the Veteran’s joint knees. The VA examination report notes that the Veteran was using a cane, as an ambulatory aid, to provide support, minimize pain, and allow mobilization. Further, the VA examination notes that the Veteran’s right knee disability has functional limitations on standing and walking, and that the Veteran is expected to have moderate to severe impairment. At a subsequent VA examination for the hand, thumb and fingers in January 2011, the Veteran complained that her ring finger had a pain intensity of 9 out of 10; that she is right hand dominant; and that she had cramping in the entire hand. However, the VA examiner clarified that this was not related to her finger condition. Further, the Veteran indicated that she has used a splint on her finger in the past; walking and standing are not an issue and that her activities of daily living are not limited, although they can be difficult at time. The VA examination report also notes that the Veteran was able to walk or stand for five minutes before needing rest. When the Veteran underwent a general medical VA examination in April 2012, the Veteran underwent an examination for hand and finger conditions. The VA examiner determined that the Veteran’s hand, thumb, or finger conditions did not impact the Veteran’s ability to work. Thus, he opined that with regard to individual unemployability, the finger diagnosis does not affect employability. Additionally, at this same VA examination, the Veteran underwent an examination for knee and lower leg conditions. Although the VA examiner noted that the Veteran used assistive devices, including a cane and a brace, the VA examiner noted that the Veteran’s knee and/or lower leg conditions did not have functional impairment of an extremity, such that no effective function remains, other than that which would be equally well served by an amputation with prosthesis. After undertaking diagnostic testing of the Veteran’s right knee, the VA examiner opined that the Veteran is unable to engage in employment requiring prolonged standing, walking, squatting, kneeling, or recurrent climbing stairs. Nonetheless, he remarked that based on her service-connected orthopedic conditions, including an examination of her foot hand, and knee, the Veteran is able to engage in sitting sedentary employment. Such a finding provides evidence against this claim. Also at this same VA examination, the VA examiner undertook an examination of the Veteran’s foot conditions. The VA examiner noted that the Veteran’s bilateral foot condition does not impact her ability to work. Specifically, he remarked that with respect to individual unemployability, the past feet calluses are not currently active, and no disability was found at this VA examination. On this basis and rationale, he opined that the Veteran’s service-connected foot calluses have no current effect on individual unemployability. At the Veteran’s August 2014 VA examination for hand and finger conditions, a VA examiner noted that the Veteran’s hand, thumb, or finger conditions impact his or her ability to work. Specifically, the VA examiner remarked that the Veteran reported having difficulty with personal grooming, grip, stretch, using her hands to cook and clean in the home; and that she requires help to do the shopping (primarily because of chronic knee pain, and also because of decreased grip strength in the dominant right hand). At her August 2017 VA examination, a VA examiner determined that the Veteran’s right knee condition impacts her ability to perform occupational tasks. Specifically, the VA examiner remarked that the Veteran is unable to stand and walk for prolonged periods. However, the VA examiner determined that the Veteran is able to engage in sedentary employment. A November 2018 vocational assessment report reflects that Dr. F.F., a vocational rehabilitation consultant, conducted a telephonic interview with the Veteran to assess her ability to secure and follow substantially gainful employment. In pertinent part, Dr. F.F. noted that the Veteran discontinued working in 2004, due to significant physical limitations, as a result of her increased pain, due to her right knee and right ring finger pain and numbness. In pertinent part, Dr. F.F. explained that the Veteran’s past work could be identified as an assembler, which is considered unskilled work, and at which performance requires light exertional level. He determined that the Veteran has no transferrable skills. In this regard, he opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, since at least 2004, primarily due to her service-connected, right knee strain and right ring finger fracture. However, Dr. F.F. did not consider, discuss, or account for the Veteran’s educational background and/or her past work experience with administrative personnel, in determining that the Veteran has unskilled work experience that is not transferrable. Additionally, this opinion is based on an inaccurate factual premise because the evidence of record reflects that the Veteran continued to work until at least 2005. Thus, the Board finds that this opinion has little probative value in the evaluation of this TDIU claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.”) (citing Reonal). Beyond this, this opinion was clearly based on what the Veteran told Dr. F.F. over the phone and, as noted above, the Veteran’s recollection of events, particularly how her service-connected problem impacts her work, is simply not accurate. Simply stated, the Veteran is not a good historian of her own disabilities, or her employment history, providing repeatedly inaccurate information. The fact that Dr. F.F. spoke with the Veteran over the phone and the provides us with a report does not make what the Veteran told this doctor, or the Board, accurate. There are significant pieces of information in this case that, when taken, provide highly probative evidence against the claim that it is the Veteran’s service connected disabilities that cause the Veteran to not work that the Board can not ignore. The Board has considered obtaining additional evaluations, but considering the evidence, and the Veteran’s history of providing imprecise information, the Board finds that such an act would not provide useful information that could provide a basis to grant this claim. Considering these facts, the Board believes it must give more weight to the examiners who have had the opportunity to physical examine the Veteran, rather than those who have spoken to her over the phone. After a review of all probative evidence of record, the Board finds that the preponderance of the evidence is against this claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). As noted above, there are several inconsistencies with the nature and severity of the Veteran’s service-connected disabilities, as it pertains to unemployability. This includes and is not limited to, inconsistent disclosures about the reason for the Veteran’s termination from her last employment, as well as the date she last worked, which is clearly questionable. Thus, given that inconsistent reasons for termination from employment, a TDIU cannot be warranted. The findings of the Social Security Administration would clearly suggest that it is her non-service connected problems that are the basis of her current unemployment. Multiple medical opinions from VA examiners suggesting a mild to, at best, moderate problem with her service connected disabilities (or at the least suggesting, or directly stating, that they would not cause her to be unemployed) would seem to support this finding. When taken, there is noteworthy evidence against this claim. Notwithstanding unsubstantiated reasons that termination from employment was a result of service-connected disabilities (a statement that the Board finds to be specious), at best, the evidence of record minimally suggests that the Veteran’s right knee disability has a functional impairment that would prevent her from undertaking employment that requires prolonged standing, walking, squatting, kneeling, or recurrent climbing of stairs (even this limited finding is very unclear) from the evidence). Overall, however, the evidence of record has not shown that the Veteran has been precluded from securing or following substantially gainful employment, at any point, even after she became unemployed. Although the August 2014 VA examination and opinion determined that Veteran’s hand, thumb, or finger conditions impact her ability to work, noting, for example, that functional difficulties with shopping are primarily due to chronic knee pain and decreased grip strength in the dominant right hand, this VA examination report does not render an opinion on the extent and severity of impairment (i.e. whether the disabilities are a minimal, moderate, or severe impairment), and/or whether the functional impairment of these disabilities on the ability to work precludes the Veteran from any or all types of employment. By contrast, however, other multiple opinions have opined that the Veteran is not precluded from undertaking sedentary employment due to her service connected problems. The Board can not disregard such evidence. At this juncture, the Board particularly notes that in a recent decision, the United States Court of Appeals for Veterans Claim (CAVC) held that before the Board can rely on an examiner’s finding that the Veteran is capable of sedentary work to deny TDIU, it must also ensure the finding is consistent with the medical evidence as a whole, and that it is the Board’s “duty to ‘interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.’” Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). Further, CAVC instructs that “the meaning and relevance of the term [“sedentary employment”] will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each Veteran's education, training, and work history.” Id. If the Board does not take into consideration the Veteran’s nonservice connected problems, the Board finds that the VA examinations, including the April 2012 and August 2017 VA examinations, which determined that the Veteran can undertake sedentary employment, is consistent with the overall medical evidence of record. The Board notes that since “sedentary” is defined as “[r]equiring or marked by much sitting ”, it interprets this definition to mean that the Veteran could work in a job where she primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). In this regard, the evidence of record has shown that the Veteran’s highest level of education is, at maximum, one year of college, and her work history includes work experience with administrative personnel. See September 2005, April 2009, and July 2014 TDIU Applications. Accordingly, the Board also finds that the Veteran’s education and work history does not preclude her from undertaking sedentary employment in an office and/or administrative capacity, exercising job functions that would not require her to undertake labor intensive work, such as lifting, bending, sitting, standing, walking, climbing, reaching; and/or any burdensome use of her right hand that requires grip and use of strength with the dominant right hand. This includes and is not limited to, for example only, undertaking sedentary work as a receptionist or a dispatcher, which would not impact the functional impairment of her right knee, right ring finger, and right-hand disabilities. While the Board, in no way, underscores the severity of the Veteran’s service-connected disabilities, the evidence has not shown that her service-connected disabilities have rendered her unable to secure and maintain substantially gainful employment, especially given that the functional limitations of her right hand, at worst, is primarily impacted by decreased grip strength, based on the medical evidence of record, and with no evidence of a service-connected left hand disability that would have served a much significant impact on her ability to secure and maintain substantially gainful employment. (Continued on the next page)   Therefore, based on the foregoing reasons, entitlement to a TDIU is denied. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Vanessa-Nola Pratt, Associate Counsel