Citation Nr: 21003531 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 10-12 886 DATE: January 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 3, 2009 is denied. FINDING OF FACT Prior to August 3, 2009, the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow any form of substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU prior to August 3, 2009, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1959 to September 1980. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge (VOJ) at a Board videoconference hearing in March 2012. A transcript of that hearing has been associated with the claims file. This matter was last before the Board in May 2020, at which time it was remanded for further development. The Board finds there has been substantial compliance with its remand directives. See, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). Entitlement to a TDIU prior to August 3, 2009. The Veteran asserts that he is entitled to a TDIU prior to August 3, 2009. In April 2013 rating decisions, TDIU was granted, effective August 3, 2009. In a December 2014 decision, the Board remanded this matter to the RO for adjudication. This matter was subsequently remanded by the Board for further development in September 2016, August 2017, March 2018 and, as noted above, in May 2020. A TDIU 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 service-connected disabilities provided that, if there is one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See, Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b) (2); 38 C.F.R. § 3.400 (o) (2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See, Hurd v. West, 13 Vet. App. 449 (2000). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Prior to August 3, 2009, the Veteran was service connected for duodenal ulcer at 0 percent, right inguinal hernia at 0 percent, left foot cellulitis at 10 percent, left hip arthritis at 10 percent, bilateral hearing loss at 10 percent, tinnitus at 10 percent and degenerative joint/disc disease of the lumbar spine at 20 percent. From June 27, 2006 through August 2, 2009, the Veteran’s combined disability evaluation was 50 percent. Accordingly, the Veteran did not meet the minimum schedular requirements for TDIU prior to August 3, 2009. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU prior to July 26, 2011 is on an extraschedular basis. See 38 C.F.R. § 4.16(b). The Veteran was afforded a VA hearing loss examination in June 2002. The Veteran reported hearing loss in both ears with the left being worse than the right. He further reported having to turn up his television to a louder level and having difficulty hearing in background noise. The Veteran was afforded a VA arteries examination in May 2005. The Veteran reported daily swelling of his feet for which he uses support hose. He further reported flares of pain every 3 weeks that lasts 3 to 4 days. The Veteran reported working as a county Veterans affairs officer and the examiner noted that his left foot cellulitis does not interfere with his work. The Veteran was afforded a VA spine examination in March 2008. The Veteran reported experiencing low back pain on a daily basis that was non-radiating. He further reported being able to walk a half mile on level ground. He also reported experiencing 3 incapacitating episodes of back pain in the prior 12 months. He reported work activities are limited to sedentary work. He reported flare-ups that are unpredictable and can last from 1 to 2 days and are characterized by increased pain and decreased activity. Upon examination, it was noted that the Veteran was unable to touch his toes and his gait was described as broad and somewhat slow. In a June 18, 2008 statement in support of claim, the Veteran stated that he takes Celebrex and Tramadol daily for his lumbar spine and would not be able to function without them. He further stated that he tried to resume walking and was only able to go for a half mile. He then stated that he is unable to tie his own shoelaces without sitting down and grabbing his pants at the shoe level, pulling each foot up, and with "lots of pain". A July 22, 2008 private treatment record from Internal Medicine of Gaffney notes the Veteran was "on medical leave for an indefinite period of time due to medical conditions." A November 4, 2009 private treatment record from Orthopedic Specialties of Spartanburg notes the Veteran reported increasing left hip pain. He reported a walking tolerance of 25 yards but was able to climb stairs carefully. A moderate limp was noted. Intermittent low back pain was also noted. It was further noted that his symptoms had been present for many years and had been relatively stable. A November 25, 2009 private treatment record from Orthopedic Specialties of Spartanburg notes the Veteran's hip arthritis and degenerative disc disease affect his gait pattern and "lead to exacerbation of symptoms more frequently." The Veteran was afforded a VA examination in December 2009. The Veteran reported that he retired early as a county Veterans' affairs officer due to his back and left hip pain which he stated affected his ability to perform his job. He also reported that the pain was present all day, every day and rated it as 7 out of 10 in intensity. The Veteran was afforded a VA hearing loss examination in July 2011. It was noted that the Veteran's hearing difficulty has significant effects upon his occupation. A November 6, 2012 private treatment record from Internal Medicine of Gaffney notes the Veteran "has been unable to work due to degenerative joint disease of the left hip and degenerative disc disease of the lumbar spine since 2009." In his November 2012 VA Form 21-8940, the Veteran asserted that his lumbar spine, left hip and sleep apnea were preventing him from securing or maintaining substantially gainful employment. The Board notes that, prior to August 3, 2009, the Veteran was not service connected for sleep apnea. The Veteran was afforded a VA examination in March 2013. The examiner noted that the Veteran's lumbar degenerative joint disease causes him to be unable to flex his back enough to pick up objects from the floor and prevent him from standing for more than 20 minutes "without function limiting back pain." The examiner then noted that the Veteran's left hip prevents him from lifting greater than more than 20 pounds without pain. The examiner concluded that "[w]hile other [service-connected] conditions are not prohibitive, these list above...render it difficult for [the] Veteran to obtain and maintain both sedentary and physical gainful employability." In a November 9, 2020 advisory opinion, the Director of Compensation Service notes that after leaving the Air Force the Veteran worked at the post office, and then as a county Veteran affairs officer from May 5, 2003 to May 11, 2009, when he stopped working due to the effects of his lower back, left hip and sleep apnea. It was also noted that he has 4 years of college education. It was further noted that “[w]hile the Veteran had functional limitations caused by service-connected conditions prior to August 3, 2009, the effects of those service-connected conditions did not render him unable to carry out substantive work activities, including in sedentary and semi-sedentary environments.” The opinion concludes with a finding against granting TDIU on an extraschedular basis prior to August 3, 2009. Here, the evidence of record shows that, prior to August 3, 2009, the Veteran’s service-connected disabilities were such that he had some difficulty with hearing due to his bilateral hearing loss and tinnitus, swelling and pain from his left foot cellulitis that did not interfere with his work, and pain from his lumbar spine and left hip conditions that did cause significant limitations to his ability to perform physical labor. As noted above in the March 2008 VA examination, the Veteran reported that his work activities were limited to sedentary work. The Board notes that the July 22, 2008 private treatment record from Internal Medicine of Gaffney which notes the Veteran was "on medical leave for an indefinite period of time due to medical conditions” did not provide the nature of these “medical conditions” nor the effect they were having on the Veteran’s ability to work. As such, the Board finds this letter to be of no probative value. The Board also acknowledges that Veteran reported to the December 2009 VA examiner that he retired early as a county Veterans' affairs officer due to his back and left hip pain which he stated affected his ability to perform his job. However, as this statement is rather conclusory and lacking in detail, the Board finds it of little probative value. Likewise, the Board acknowledges the November 6, 2012 private treatment record from Internal Medicine of Gaffney which notes the Veteran "has been unable to work due to degenerative joint disease of the left hip and degenerative disc disease of the lumbar spine since 2009”, but again finds that the statement is lacking in detail and is only of limited probative value. Here, the Veteran stated in March 2008 that his lumbar spine pain limited him to sedentary job activities. Further, the Board notes that the Veteran has not provided any evidence that his job required any physical labor. Essentially, the evidence in favor of granting a TDIU prior to August 3, 2009 consists of conclusory statements that the Veteran’s physical pain from his lumbar spine and left hip disabilities preclude him from working. The Board again notes, however, that in his November 2012 VA Form 21-8940, the Veteran asserted that his lumbar spine, left hip and sleep apnea were preventing him from securing or maintaining substantially gainful employment. As the Veteran was not service connected for sleep apnea prior to August 3, 2009, the Board is precluded from considering that disability. As such, the Board finds that prior to August 3, 2009, the sum of the Veteran’s service-connected disabilities, while certainly precluding any substantially gainful employment of a physical nature, have not been shown to preclude substantially gainful employment of a sedentary nature. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU were not met or more nearly approximated prior to August 3, 2009. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.