Citation Nr: 21004567 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 12-00 306A DATE: January 27, 2021 ORDER Entitlement to an effective date earlier than March 31, 2006 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT Prior to March 31, 2006, the Veteran’s service-connected disabilities were not of such severity that he was unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from August 1986 to May 1990. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2017 decision, the Board denied the Veteran’s claim for an earlier effective date for his TDIU award. Thereafter, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court). In September 2018, a Joint Motion for Remand (JMR) was granted by the Court, vacating the July 2017 Board decision regarding the Veteran’s TDIU claim and remanding this issue back to the Board for additional development. In an August 2019 decision, the Board denied the Veteran’s claim for an earlier effective date for his TDIU award. After appealing this decision to the Court, an August 2020 Joint Motion for Remand was granted by the Court, vacating the August 2019 Board decision regarding the Veteran’s TDIU claim and remanding this issue back to the Board for additional development. The case is now again before the Board for further appellate action. Entitlement to an effective date earlier than March 31, 2006 for the award of a TDIU due to service-connected disabilities is denied. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 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 Veteran contends that he is entitled to a TDIU prior to March 31, 2006. The Veteran contends that he became too disabled to work on February 20, 1998. The Veteran’s service-connected disabilities prior to March 31, 2006 were the following: headaches due to head injury, rated at 10 percent from May 15, 1990; low back disc disease, rated at 0 percent from May 15, 1990 and 40 percent from September 1, 1995; chondromalacia patella of left knee, rated at 10 percent from May 15, 1990 and 20 percent from February 25, 1996; chondromalacia patella of right knee, rated at 10 percent from May 15, 1990 and 20 percent from February 25, 1996; tender scar of right parietal area, rated at 10 percent from May 15, 1990; left knee degenerative joint disease with limitation of flexion, rated at 10 percent from February 25, 1996; right knee degenerative joint disease with limitation of flexion, rated at 10 percent from February 25, 1996; left knee degenerative joint disease with noncompensable limitation of extension, rated at 10 percent from February 25, 1996; and right knee degenerative joint disease with noncompensable limitation of extension, rated at 10 percent from February 25, 1996. The Veteran had a combined disability rating of 40 percent from May 15, 1990; 60 percent from September 1, 1995; and 80 percent from February 25, 1996. Thus, the schedular criteria for TDIU have been met from February 25, 1996. 38 C.F.R. § 4.16(a). Turning to the evidence, a June 1996 U.S. Postal Service document reported that the Veteran had injured his back and was restricted to not lifting more than ten pounds and sitting duties every two hours or as needed. An October 1997 Report of Medical Examination for Disability Evaluation reported that the Veteran complained of headaches, dizziness, confusion, forgetfulness agitated from headaches, back pains and muscle spasms, and severe pain in both knees. He also claimed that “I feel lost sometimes.” An October 1997 VA neurological disorder examination reported the Veteran had momentary dizziness every three to four days. He also complained of headaches on the top of his head. He was diagnosed with tension-type headaches and dizziness with giddiness and component of benign positional vertigo. A March 1998 Federal Employees Retirement System Supervisor’s Statement reported that the Veteran’s position as a mail handler required him to be able to stand, walk, and lift up to 70 pounds. It was reported that numerous light duty assignments had been tried; however, accommodation was not possible due to current restrictions. A June 2000 handwritten note from a VA doctor reported that the Veteran was evaluated for exacerbation of a chronic low back condition. The doctor requested that the Veteran be excused from heavy lifting for a two-week period. A March 2002 VA primary care note reported that the Veteran was here to establish care. A past medical history of degenerative disc disease L5/S1, herniated lumbar disc, bilateral knee arthritis, and chronic headaches. The Veteran was diagnosed with degenerative disc disease of the back and osteoarthritis of the knees. A March 2002 handwritten note from a VA doctor reported that the Veteran had chronic low back pain secondary to degenerative disc disease, protruding osteophytes and a small central herniated disc, which was not expected to improve but rather worsen. The doctor wrote that the Veteran was a great risk to harm himself if he were to resume his previous position as a mail handler. A February 2004 handwritten note from a VA doctor reported that the Veteran had chronic low back pain secondary to degenerative disc disease, protruding osteophytes and a small central herniated disc, which was not expected to improve. The doctor recommended that he should not resume his previous position as a mail handler. The Veteran was provided a VA joints examination in March 2004. The Veteran reported that, after his military service, he worked for the post office as a mail handler for five and a half years. His work required him to lift up to 70 pounds of weight and moving very heavy equipment. He reported he was hired as a disabled veteran, but as time went on his work became too heavy and the disability was deteriorating to the point that he was unable to perform his duties. He used all his annual leave and sick leave and quite often was late for work. In May 1998, he was placed on disability retirement. The Veteran reported that he now he has knee pain of 5 on a 10-point scale daily. He walks with a cane and could only walk about a quarter of a block before the pain starts recurring. He was fairly steady on his feet and he had not fallen. He reported he was unable to do any lawn mowing or vacuuming, but he can sit on a high stool and cook periodically. The Veteran reported back pain of 8 on a 10-point scale. He reported he could lift items up to 10 pounds. He took Advil for pain daily as his pain was constant. He described the pain as being mostly in the back and did not radiate to other body parts. The examiner reported no limitation due to weakness, fatigability, incoordination or flare-ups. The Veteran was diagnosed with moderate degenerative disc disease of the lumbosacral spine and moderate arthritis of both knees. The examiner concluded that the Veteran could perform desk-type work. A July 2004 note from the Veteran’s vocational rehabilitation counselor reported the Veteran provided a final transcript stating that his degree had been conferred. It was also reported that the counselor and the Veteran wrote “IEAP” to reflect employment services with a contractor and that “he is able to maintain employment with few effects from the disability.” The accompanying official transcript submitted by the Veteran showed he was awarded from Loyola University Chicago a bachelor’s degree with a major in Finance and a minor in Economics on April 24, 2004. A March 2005 VA examination of neurological disorders reported that the Veteran had chronic discomfort in the occipital area, which the Veteran described as a generalized-type headache that is associated with photophobia. He described headache pain as 8 on a 10-point scale. The Veteran reported he was not on any prescription medications for his. He also complained of concentration and attention problems and forgetfulness. He was able to complete his college studies at Loyola University in Finance and Economics, but noted it was very difficult and time consuming because of poor concentration. His typical day involves working as an administrative assistance for a mortgage company. He stated that he had a hard time at work following directions and completing things on time. He noted that he is often forgetful and had been reprimanded for this. The rest of the time he cared for his six-year-old daughter and was able to do that. The Veteran was diagnosed with nontraumatic brain injury with residuals that included chronic headaches and concentration and attention problems. The examiner stated that his headaches can interfere with employment, as can the attention and concentration problems by promoting forgetfulness. However, the examiner noted that, at this point, the Veteran does not appear to be appropriately treated and is not on a preventive headache medication. His neurological examination was otherwise normal. A March 2005 VA joints examination reported that the Veteran experienced back pain and knee pain. He was diagnosed with bilateral knee pain with minimal arthritis and lumbar strain with moderate degenerative disc disease at L5-S1. The examiner reported that the Veteran was a 37-year-old man who is using a cane to ambulate but noted the following: I am uncertain as to why he has such severe deficiencies in needing a cane. X-rays of his lumbosacral spine show degenerative disc disease otherwise relatively unremarkable. He gives a history of radiculopathy, but has normal neurologic exam today. His knee x-rays show minimal arthritis at this point. The examiner opined that, concerning the Veteran’s orthopedic knee complaints only, he did not feel the patient was unemployable. The examiner stated “[h]e certainly will be employable for a desk job and also seems to be employable for job that had intermittent standing and sitting.” However, the examiner opined that the Veteran would not be a candidate for a job that requires any heavy lifting. An October 27, 2005 VA medical record reported that the Veteran “was here to obtain a form for disability car plate” and also requested a letter describing his medical problems. The Veteran stated that he had pain with prolonged sitting and standing. As requested by the Veteran, on October 27, 2005, the doctor drafted the following note: “[The Veteran” has chronic low back pain secondary to degenerative disc disease, protruding osteophytes and a central herniated disc. He has pain [with] prolonged sitting and prolonged standing. This condition is not expected to improve.” In December 2006, the veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he expressed that “I cannot work comfortably standing or sitting whether short or long periods of time, I cannot lift anything as it will further have damaging affects [sic].” He reported that he had graduated from Loyola Jesuit University Chicago with a bachelor’s degree in Finance (3.9 GPA), and Economics (3.62 GPA) and 3.52 GPA overall. The Veteran underwent a VA examination in March 2007. The examiner noted the Veteran’s injury history regarding his service-connected bilateral knee, back, and headache disabilities. The Veteran complained of right knee buckling on a daily basis, with joint stiffness and an occasional popping sensation. He also reported using a cane since 1991 which helps his back and knees. Clinical examination revealed decreased range-of-motion with complaints of pain. The examiner opined that the Veteran’s service-connected disabilities would prevent him from doing a job that required being on his feet or lifting, but he would be capable of doing sedentary work. The examiner also found that the Veteran’s subjective complaints and use of a cane were out of proportion with the objective evidence found on examination. A December 2007 VA treatment note reported that the Veteran had chronic headaches, “which now he feels is worse.” The Veteran’s representative submitted a March 2019 vocational assessment completed by a vocational expert. The vocational expert opined that it was at least as likely as not that the Veteran was precluded from securing or following a substantially gainful occupation due to the combined effects of his service-connected disabilities “likely from when he last worked in 1998 to 2006, and certainly from 1998 until 2004.” The vocational expert provided the following description of the Veteran’s work history after 1998: For a period of time beginning after 1998, [the Veteran] worked in a number of short-term jobs through which he earned a low level of income. The reason these jobs were short term is that he had trouble performing his required work duties on a consistent basis secondary to the limitations stemming from his service-connected disabilities. However, the evidence of record conflicts with the vocational expert’s conclusion that the jobs were short-term due to the Veteran’s service-connected disabilities. A January 2003 memorandum from a vocational rehabilitation counselor reported that the Veteran obtained a job as an assistant manager for Hancock Fabrics, but quit for another opportunity as a general office administrator for DHI Mortgage. A March 2005 memorandum from a vocational rehabilitation counselor reported that the Veteran had obtained two jobs due to their efforts. The first job was at Hancock Fabrics and the second one was at DHI Mortgage for $13.00 an hour. The Veteran had reported that as of April 13, 2005, his position with DHI Mortgage would be terminated due to the hiring of another person for the position. The Veteran stated that it was because of sex discrimination. In March 2006, the VA received statements from the Veteran in which he explained that he left his job as a manager trainee with Hancock Fabrics because the company required that he commute 75 miles one way to work. He expressed that the commuting cost in relation to the hourly pay was “in no way productive in relation to the earning capacity it had offered.” The Veteran reported on a December 2006 VA Form 21-8940 that he worked for Hancock Fabrics as a manager trainee from October 2004 to January 2005 and described his work performance as excellent in correspondence he submitted in November 2017. An April 2005 memorandum from a vocational contractor reported that the Veteran was currently employed with DHI Mortgage as the general office administrator, earning $13.60 per hour. The Veteran reported that the job was temporary, and he asked them to keep him on until the end of April, which would allow him enough time to pay off debts. The Veteran stated that he wanted to relocate to warmer states because his daughter has chronic rhinitis and requires a less aggravating climate. In March 2006, the VA received statements from the Veteran in which he explained that he began working at Check ‘n Go in August 2005 but was terminated due to company cutbacks. The Veteran also expressed his displeasure with jobs that he did not consider to have offered him an income he desired: Being offered an hourly wage between $9 to $11 per hour ($18,720 to $22,880 annual salary), with the degree that I earned, for that specific position plus my previous experience, is an embarrassment to the system and for what it required of me was in no way adequate. Although the vocational expert stated that the reason the jobs held by the Veteran were short term was his trouble performing duties due to his service-connected disabilities, the record shows that the short-term nature of some of the jobs held by the Veteran prior to March 2006 was due to reasons other than the Veteran’s service-connected disabilities. Moreover, the Veteran himself reported that his work performance for Hancock Fabrics from October 2004 to January 2005 was excellent. Thus, the Board finds the vocation expert’s opinion is not probative, as a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, the vocational expert failed to note or consider (1) the July 2004 note from the Veteran’s vocational rehabilitation counselor that reported that he and the Veteran drafted correspondence to reflect that the Veteran “is able to maintain employment with few effects from the disability,” and (2) the March 2005 VA joints examination in which the examiner reported that the Veteran “certainly will be employable for a desk job and also seems to be employable for job that had intermittent standing and sitting.” Therefore, the Board finds that the opinions and rationale provided by the vocational expert did not sufficiently analyze relevant evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the reasons stated, the Board affords the vocational expert no probative value. In determining whether the Veteran is entitled to a TDIU, the Board has considered the Veteran’s level of education, special training, and previous work experience. See 38 C.F.R. § 4.16. The Board finds that the Veteran’s education, which was sufficient for him to complete high school and earn a college degree in 2004, is not inconsistent with an ability to perform sedentary work of an unskilled or semi-skilled nature, such as a receptionist, dispatcher, or surveillance systems monitor, which do not involve exertional activities beyond the Veteran’s residual functional capacity in view of his service-connected disabilities. The Veteran has past work experience as a mail handler. The Board finds that, although the Veteran may no longer be able to perform his past work and has not worked in many years, his work history would not prevent him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which does not require special training and can be learned on the job site. The record does not show that the Veteran’s service-connected disabilities limit the Veteran’s ability to perform sedentary work prior to March 31, 2006. Although the Veteran’s service-connected disabilities limits his ability to perform physical labor commensurate with his prior occupation as a mail handler, it does not lift, carry, and reach, it does not otherwise limit his ability to perform sedentary work. Although the doctor wrote in March 2002 that the Veteran was a great risk to harm himself if he were to resume his previous position as a mail handler, the Board notes that the Veteran was required to lift up to 70 pounds as a mail handler. Moreover, the restrictions on the Veteran’s duties in June 1996 still allowed him to lift up to ten pounds. The VA examiner who conducted a June 2004 joints examination concluded that the Veteran could perform desk-type work. The VA examiner who conducted a March 2005 joints examination concluded that the Veteran “certainly will be employable for a desk job and also seems to be employable for job that had intermittent standing and sitting.” The VA examiner who conducted a March 2007 VA examination opined that the Veteran’s service-connected disabilities would prevent him from doing a job that required being on his feet or lifting, but he would be capable of doing sedentary work. The examiner also found that the Veteran’s subjective complaints and use of a cane were out of proportion with the objective evidence found on examination. In addition to the Veteran’s joint disabilities, he is service connected for headaches due to his in-service head injury. In October 1997, the Veteran complained of headaches, dizziness, and confusion related to his headaches. An October 1997 VA neurological disorder examination reported the Veteran had momentary dizziness every three to four days. At a March 2005 VA examination, he complained of concentration and attention problems and forgetfulness related to his headaches. He noted that he is often forgetful and had been reprimanded for this. The rest of the time he cared for his six-year-old daughter and was able to do that. The examiner stated that his headaches can interfere with employment, due to problems with attention, concentration, and forgetfulness. However, the Board notes that the Veteran was able to continue working for DHI Mortgage until April 2005 when he reported someone else was hired for the position he held. According to his VA Form 21-8940, he then worked as a security guard from October 2005 to April 2006. At a March 2007 VA examination, he reported that his employment as a security guard ended because he was going to be transferred to another location that he considered too far for him to drive, though he reported January 2006 as a termination date, conflicting with the date, April 2006, he provided on his VA Form 21-8940. Thus, the Board finds that the evidence of record does not show that the effects of the Veteran’s headaches precluded his ability to secure or follow a substantially gainful occupation prior to March 31, 2006. The Board notes that “sedentary work”, as the term is used by the March 2007 VA examiner, is not defined in the relevant statues, regulations, or caselaw, and that the Board must provide a definition on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018). In this case, the Board defines “sedentary work” as work that is performed mostly in a sitting position and requires no more than 2 hours of standing and/or walking in an 8-hour workday. Occupations representative of sedentary work include clerical work, inspection work, and assembly work. Such work is performed mostly in a sitting position and would not require the type of demanding physical work or persistent strenuous activity that is precluded by the Veteran’s service-connected disabilities. The evidence of record also show that the Veteran has the mental ability to perform the activities required to perform sedentary work. As such, the probative evidence of record does not show that, prior to March 31, 2006, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Rather, due to his service-connected disabilities, the Veteran was limited to sedentary work, as the Board has defined that term above. The Veteran had a high school education and in April 2004 earned a college degree and his occupational experience did not further limit his ability to secure and follow substantially gainful unskilled or semi-skilled employment, such as a receptionist, dispatcher, or surveillance systems monitor. Accordingly, the preponderance of the evidence is against a finding of entitlement to a TDIU prior to March 31, 2006, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, Associate 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.