Citation Nr: 20021998 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 10-00 409A DATE: March 30, 2020 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) for the period beginning July 24, 2008, is granted. REMANDED Entitlement to TDIU, for the period prior to July 24, 2008, is remanded. FINDING OF FACT Effective July 24, 2008, the Veteran’s service-connected disabilities meet the schedular criteria for award of TDIU and preclude substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU have been met effective July 24, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1989 to October 1991. The Board of Veterans’ Appeals (Board) denied the claim in a June 2018 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court issued an Order that vacated the Board decision and remanded the issue for readjudication consistent with the terms outlined in a May 2019 Joint Motion for Remand (JMR). 1. Entitlement to TDIU, for the period beginning July 24, 2008, Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 a service-connected disabilities. Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The Veteran is in receipt of service connected benefits for migraine headaches, evaluated as 10 percent prior to July 24, 2008, and 30 percent thereafter; hypertension, evaluated as 10 percent disabling, effective October 18, 1991; lumbosacral strain with degenerative disc disease, evaluated as noncompensable prior to September 29, 2005, and 20 percent disabling thereafter; left leg radiculopathy associated with lumbosacral strain with degenerative disc disease, evaluated as 10 percent disabling, effective September 29, 2005; right leg radiculopathy associated with lumbosacral strain with degenerative disc disease, evaluated as 10 percent disabling, effective September 29, 2005; major depressive disorder, evaluated as 30 percent disabling, effective May 3, 2007; and coronary artery disease with hypertensive heart disease, evaluated as 30 percent disabling, effective August 21, 2008. The Veteran has a combined disability rating of 70 percent, effective July 24, 2008, and 80 percent, effective August 21, 2008. When combining his lumbar spine disability and associated neurological disabilities to one 40 percent, the Veteran meets the criteria to be considered for a TDIU on a schedular basis, effective July 24, 2008. The Board finds that the entitlement to a TDIU, effective July 24, 2008, is warranted. Evidence reflects that the Veteran retired from his position of letter carrier in 2007 following right hip surgery. The records surrounding his retirement show that the Veteran underwent right hip surgeries in 2007, and was no longer able to complete the duties of his job due to his right hip disability. The Board notes that the Veteran is not in receipt of service connection for a right hip disability. The record also reflects that the Veteran received disability benefits from the Social Security Administration based upon his right hip disability. The Veteran was afforded a VA back examination in August 2007. The Veteran reported stiffness and weakness in his low back. The pain was constant and traveled to the legs. The pain was elicited by physical activity and stress, came on by itself, and was relieved by rest and medication. He could function with medication when he had pain. It was noted that the Veteran condition caused functional impairment in work restrictions. The Veteran was afforded a VA spine examination in September 2008. The pain reported by the Veteran in the lower back was not synonymous with lumbosacral strain or degenerative disc disease. The VA examiner determined that the Veteran’s reported symptoms of radiculopathy were not synonymous with a lumbosacral strain or degenerative disc disease. Additionally, there was no indication of radiculopathy or sciatic nerve involvement. The Veteran was afforded a VA heart examination in July 2012. After examination the examiner noted that the Veteran’s heart condition did not impact the Veteran’s ability to work. In November 2012 the Veteran’s depression was noted to be in remission. The Veteran was afforded a VA headaches examination in June 2014. The Veteran’s headaches were 8 out of 10 in intensity. They were associated with dizziness, photophobia, blurred vision, and phonophobia. They lasted about 1.5 to 2 hours and averaged 5 to 6 a month. He had 4 prostrating headaches a month. However, the examiner reported that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Veteran reported that he was retired since 2007 and was unable to function when he was having a prostrating headache. The Veteran was afforded a heart examination in June 2014. Interview-based METs test revealed that the Veteran could not walk or stand for any length of time due to continuing hip and back pains. The Veteran’s major limitations were not due to heart disease. METs were reported as 1 to 3, consistent with activities such as eating, dressing, taking a shower, and slow walking for 1 to 2 blocks. Although the METs level was due to multiple factors, it was not possible to accurately estimate the percentage. The Veteran’s heart condition was noted to impact the Veteran’s ability to work. Hypertension was noted to not impact the Veteran’s ability to work. The Veteran was afforded a mental disorders examination in June 2014. The examiner noted that the Veteran had 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. It was noted that the Veteran was told after his second hip surgery in June 2007 that he could no longer carry mail. The Veteran had not worked since 2007. In January 2015, at a hearing before the undersigned, the Veteran reported that he was a letter carrier and that he stopped work after his hip surgery. The Veteran reported that his headaches interfered with his ability to work because he would have to take time off and medicate. The Veteran reported that he had a high school education. Upon examination in July 2015 the Veteran’s psychiatric disability was noted to cause 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 majority of the Veteran’s impairment was attributed to the depressive disorder. The Veteran’s alcohol use disorder more likely than not exacerbated the Veteran’s depressive disorder. The Veteran reported that he had constant pain from his joints and back. He had migraines four times a month which last one to two days. He was bedridden and self-medicated at those times. The Veteran reported that there were some days that he wakes up and does not want to be with other people, about twice a week. He turned his phone off, went to the beach, etc. He felt anger from deep inside that was related to not being able to do the things that he needed to do. The examiner noted that the Veteran’s depression affected his mood and caused decreased appetite, energy, concentration, and interest. However, the Veteran could stay active and he reported that he did airbrushing in his garage and visited family member a few times per week. He was independent in his activities of daily living and could perform limited yard work. On July 2015 VA examination, following physical examination of the Veteran, the examiner concluded that the Veteran did not suffer from a low back disability. The examiner explained that the Veteran did not suffer from a strain, and that his back complaints were functional and mechanical. X-rays did not show evidence of degenerative disc disease or facet disease, but were normal. The examiner also concluded that the Veteran was not suffering from radiculopathy. In a November 2016 counseling narrative, service-connected and nonservice-connected disabilities were identified. It was reported that the Veteran was unemployed and to lack the necessary education/training that would make him competitive and marketable for suitable employment that is consistent with his interest, aptitude, and abilities that’s compatible to his current disabling conditions. The Veteran’s service-connected disabilities significantly impaired the Veteran’s ability to prepare for, obtain and/or retain suitable employment. He had multiple disabling conditions, experienced chronic pain, was easily fatigued and his endurance was limited, which impaired his ability to concentrate and focus. The Veteran was noted to be precluded from working. The Veteran’s service-connected disabilities placed him at an employment disadvantage compared to similarly circumstanced Veterans. His service-connected disabilities were the cause for the limitation as he was unable to obtain, maintain or prepare for specific employment in the labor market that does not aggravate his service-connected disabilities. Therefore, the effects of the impairment contribute in an identifiable, measurable or observable way to his ability to obtain, maintain or retain employment that is consistent with his disabilities. The impairments were found to result in substantial part form his service-connected disabilities. In December 2016 the Veteran was noted to have completed his Individualized Independent Living Plan (ILLP) and was declared rehabilitated. However, the Veteran’s current situation was noted to be unemployable. In March 2017 a vocational evaluator found that the Veteran’s service-connected disabilities caused physical and environmental restrictions for work and hindered his ability to work in labor intensive positions resulting in work limitations. The Veteran’s history of prolonged unemployment restricted the Veteran’s access to employment opportunities. The Veteran did not have readily transferrable and marketable skills for employment consistent with his aptitudes, abilities and interests. The Veteran did not have skills suitable for employment and was unemployed and therefore had not overcome the impairment of employability. The Veteran had impairment to employability, resulting in substantial part from the service-connected disabilities. A private Vocational Assessment of the Veteran was prepared in January 2020. The expert noted the Veteran’s service-connected disabilities. The expert discussed the Veteran’s reported symptomology, the Veteran’s work history, and his education. The expert identified the Veteran’s inability to sit or stand for longer than 10 to 15 minutes or walk longer than 5 minutes as inconsistent with the exertional demands of even sedentary employment. The expert identified records that indicated that the Veteran had pain level of a 10 out of 10 that could be elicited by physical activity. The expert reported that the records showed that the Veteran had limited walking and standing ability due to severe back and leg pain and low energy. He was able to walk about 50 feet to his mailbox at a slow pace. He had difficulty with transferring to the bathtub or from the toilet. The expert identified testimony at the hearing before the Board indicating that the Veteran had difficulty standing for any period of time, and had difficulty sitting and walking as well. The Veteran’s heart condition caused additional physical limitations that contributed to his inability to meet the physical requirements of even sedentary work since at least August 2008. Treatment records were identified indicating occasional chest pain that can last 5 to 10 minutes and shortness of breath with physical activity. Records were noted to show unstable angina and chest pain with moderate exertion. The records were further noted to show that the Veteran had dyspnea and fatigue at a level of 5 to 7 METS, which is consistent with climbing one flight of stairs. Thereafter, the expert discussed the impact of the Veteran’s symptoms on basic requirements to maintaining substantially gainful employment. The disabilities were noted to contribute to an inability to sustain adequate pace and productivity. The disabilities were also noted to cause an inability to sustain concentration and would lead to time spent off task in excess of employer tolerances. The Veteran’s depression was also noted to cause an inability to consistently meet workplace expectations of appropriate and effective interpersonal communications. The expert concluded that it is more likely than not that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected migraines, back, and bilateral lower extremity radiculopathy since at least January 2007. The Veteran’s major depressive disorder and coronary artery disease have more likely than not further precluded him from securing or following substantially gainful employment since at least May 2007 and August 2008. The expert stated that during this time period the Veteran’s medical record, as well as his self-report, depicts symptoms incongruent with the requirements of competitive employment. During the period from July 24, 2008, to the present, the Veteran has been unemployed and has met the schedular criteria. In addition, affording the Veteran the benefit of the doubt, the Veteran’s service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation during that same period. It is acknowledged that the Veteran left his position as a letter carrier due to a nonservice-connected hip disability. In addition, it is acknowledged that the VA examiners have reported both that the Veteran has and does not have a back disability. The Veteran is acknowledged to have significant nonservice-connected hip disabilities. Finally, it is acknowledged that a VA psychiatric examiner noted that the Veteran had residual functional ability. However, based upon review of the disabilities in aggregate and consideration of the opinions of the vocational experts, the Veteran’s service-connected disabilities render him unemployable. VA examiners have found that the Veteran’s back disability, heart disability, and psychiatric disability have caused the Veteran functional impairments. A VA vocational counselor has opined that the Veteran’s service-connected disabilities render him unable to obtain, maintain or prepare for specific employment in the labor market. The counselor has also noted that the Veteran is unemployable. In addition, a private vocational expert, contemplating the aggregate impairment of the Veteran’s service-connected disabilities, opined that the Veteran’s service-connected disabilities render the Veteran unemployable during the entire period on appeal. Therefore, as the Veteran’s service-connected disabilities meet the schedular criteria for TDIU for the period beginning July 24, 2008, and as the Veteran’s service-connected disabilities render the Veteran unemployable, entitlement to TDIU, for the period beginning July 24, 2008, is granted. REASONS FOR REMAND 1. Entitlement to TDIU, for the period prior to July 24, 2008, is remanded. The Veteran currently does not meet the schedular criteria for the award of a TDIU for the period on appeal prior to July 24, 2008. 38 C.F.R. § 4.16 (a). However, the evidence indicates that the Veteran may be unemployable due to his service-connected disabilities during the period prior to July 24, 2008. VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU based on 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Board acknowledges the representative’s argument that referral of the issue of TDIU under 38 C.F.R. § 4.16 (b) to the Director of Compensation Service is unnecessary. However, the Court has stated in Wages v. McDonald, 27 Vet. App. 233 (2015) that “[a]s to the Secretary’s argument that de novo review of the Director’s decision by the Board renders the referral process in §4.16(b) meaningless, we note that such a referral is the Secretary’s chosen procedure under § 4.16(b).” The Board points out that the regulatory procedures have not been changed; 38 C.F.R. § 4.16 (b) is still in effect. Accordingly, consideration of entitlement to a TDIU for the period prior to July 24, 2008, on an extraschedular basis, is remanded for referral to the Directory of Compensation Service for consideration. The matters are REMANDED for the following action: The claims file should be forwarded to the VA’s Director of C&P Service or Under Secretary for Benefits for consideration of entitlement to a TDIU, for the period on appeal prior to July 24, 2008, in accordance with 38 C.F.R. § 4.16 (b). M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.