Citation Nr: 21005027 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-05 958 DATE: January 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), for the purposes of accrued benefits, is granted. FINDING OF FACT 1. The Veteran passed away on April 28, 2019. 2. The appellant is the Veteran’s surviving spouse and was properly substituted for the Veteran as noted in the June 2020 Memorandum Decision of the Court and by a July 16, 2020 notification letter. 3. The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment, consistent with his education and work experience, during the appeal period. CONCLUSION OF LAW The criteria for entitlement to a TDIU, for the purposes of accrued benefits, have been met since February 8, 2013. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1984 to September 1987. The Veteran unfortunately passed away during the pendency of this appeal in April 2019. The appellant is the Veteran’s surviving spouse and was properly substituted in July 2020. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated January 2014, which denied the Veteran’s claim for a TDIU. The Board denied the Veteran’s claim in a March 2019 decision. The Veteran appealed the Board’s denial to the Court of Appeals for Veterans Claims (the Court) and, by a June 2020 Memorandum Opinion, the Court set aside the Board’s decision and remanded the claim for readjudication. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) The appellant seeks a TDIU for the purposes of accrued benefits. The Veteran filed a formal application for TDIU in March 2013. The Board has accordingly considered the 1-year period prior to March 2013 in assessing his eligibility for a TDIU. 38 C.F.R. § 3.400 (o)(2). At all times during the appeal period until his passing, the Veteran met the minimum disability rating requirements to be eligible for consideration of a schedular TDIU. See 38 C.F.R. § 4.16(a). A schedular total disability evaluation for compensation purposes may be assigned when the schedular rating is less than 100 percent, when a Veteran 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology or from a single accident are considered one disability for TDIU purposes. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a TDIU claim, the issue is whether a Veteran’s service-connected disability or disabilities preclude the veteran from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran was service connected for the following disabilities: 1. status post compression fracture, L4 with secondary bilateral leg condition and mild scoliosis (60 percent from February 1999); 2. Nocturia with incontinence associated compression fracture, L4 (40 percent since September 2017) 3. depression associated with status post compression fracture, L4 with secondary bilateral leg condition and mild scoliosis (30 percent from January 2014); 4. torn anterior cruciate ligament and medial collateral ligament of right knee (20 percent from April 2001); 5. right knee degenerative joint disease (10 percent from April 2001); 6. trochanteric bursitis, left hip, with impairment of thigh (10 percent from December 2012); 7. trochanteric bursitis, right hip, with limitation of flexion (10 percent from December 2012); 8. left knee degenerative joint disease, with meniscus tear and meniscectomy (10 percent from December 2012); 9. genital numbness (0 percent from April 2000); 10. limitation of flexion of left hip (0 percent from December 2012); 11. impairment of right hip or thigh (0 percent from December 2012); 12. right knee surgical scars (located midline, lateral and medial) (0 percent from December 2012); 13. surgical scar (medial location of knee), left knee (0 percent from December 2012); and 14. erectile dysfunction (0 percent from October 2017). After a review of the evidence of record, the Board resolves any doubt in the Veteran’s favor and finds that the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities from February 8, 2013. His March 2013 TDIU application noted he worked full-time as a school superintendent from 2008 to February 7, 2013, earning from $80,000-90,000 per year. The Veteran had a bachelor’s degrees in Education and in Economics, as well as master’s degrees in Education and in Business. See October 2017 VA mental health consultation note. As the Veteran met the schedular criteria for entitlement to TDIU for the entire period on appeal then a TDIU is warranted if the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran contends his service-connected depression, combined with his service-connected spine, bilateral hip, and bilateral knee disabilities and the side effects from the medications he takes for those conditions, such as concentration problems and difficulties with focus and completing tasks, caused him to stop working as a school superintendent in 2013 and render him unable to perform or sustain full-time work. See March 2015 Decision Review Officer (DRO) conference report; September 2016 VA Form 9. September 2013 VA examinations for the Veteran’s back, hip, and knee conditions indicated that the physical functional impact of those disabilities affected his ability to work due limiting his ability to lift to 10 lbs., his walking to 4 blocks at any one time, walking 1 hour in an 8 hour period, standing for 1 hour at any given time, and for a total of 2 hours in an 8 hour period. A February 5, 2013 opinion provided by VA Nurse Practitioner Wanta indicates the Veteran would have difficulty concentrating due to pain and he would need to avoid work if he had to take muscle relaxers for his chronic lower back, hip, and knee issues. See Social Security Medical Records 1 at 106. This examiner’s opinion is further supported by an employer questionnaire which indicates that the Veteran requested extensive leave due to pain issues, required frequent rest periods during the day, and was observed to be “sleeping at his desk or other indications of pain management.” See Social Security Medical Records- 2 at 136-137. The Veteran’s employer noted the Veteran’s frequent absences due to his physical health problems caused missed deadlines and poor staff communication and his performance was under review prior to his request for FMLA leave. Id. Likewise, an April 10, 2015 VA Disability Benefits Questionnaire for depression related to his service-connected physical disabilities indicated that the Veteran most likely experiences some impairment in attention and focus affecting his ability to engage in employment and noted the Veteran’s increased absences due to pain management issues. The Board is aware of the December 2015 VA examiner opinion that indicated that medications for service-connected disabilities are less likely as not causing more than a mild effect on the Veteran’s concentration, attention and/or focus. The examiner indicated that medications prescribed in the last 6 months would less likely as not prevent tasks requiring calculations, decision-making, time-management and/or communication with others in an occupational environment, based on the quantities of such medications taken over the prior 6 months (which he obtained from pharmacy fill records) and his finding of no evidence of daytime sedation. Moreover, the examiner explained that when used regularly, tolerance develops to the sedating effects. However, the Board finds that the conflicting opinions noted above are competent, credible, and the Board places greater reliance on the positive opinions of record. These opinions addressed the effect of pain as it related to the Veteran’s ability to focus on his tasks at hand, whereas the December 2015 opinion only addressed the effects of medications for the prior six months on concentration, attention, or focus. The Board accordingly assigns greater probative weight to the Nurse Practitioner Wanta’s opinion and the April 10, 2015 VA examiner’s opinion. These opinions are further supported by a January 30, 2018 vocational assessment offer by a vocational expert, Kristin Panella. After summarizing the Veteran’s physical disabilities and work history she indicated that the Veteran’s pain and depression symptoms would cause him to be an unreliable employee, missing several days per month. The examiner offered an opinion that Veteran had been unable to maintain employment since March 2013 due to the combined effects of his service-connected disabilities and would prevent him from maintaining competitive employment. The Board resolves all reasonable doubt in the Veteran’s favor and finds that the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment from February 8, 2013. Specifically, the Veteran’s service-connected physical disabilities caused him substantial limitations regarding his ability to stand, walk, or carry heavy objects. His service-connected disabilities also caused significant pain and caused the Veteran to miss significant amounts of time from work and his employer’s observations regarding his lack of focus are consistent with medical opinions rendered on these matters. The Veteran was also service connected for depression which has impacted his ability to successfully maintain employment. The combined effect of the Veteran’s service-connected disabilities precluded the Veteran from engaging in substantially gainful employment since February 8, 2013. The record shows that the Veteran in fact maintained gainful employment prior to February 8, 2013 at all times relevant to this appeal. Accordingly, a TDIU is granted from February 8, 2013, the date following the Veteran’s last employment. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John M. Middleton 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.