Citation Nr: 21071770 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-44 600 DATE: December 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 22, 2016 to July 31, 2019 is granted, subject to the regulations governing payment of monetary awards. FINDING OF FACT From February 22, 2016 to July 31, 2019, the Veteran's service-connected disabilities (coronary artery disease with left main disease status post coronary artery bypass graft (CABG), left ventricular hypertrophy and myocardial infarction associated with hypertension, rated 30 percent; left and right shoulder arthritis, 20 percent, each; type II diabetes mellitus, 20 percent; cervical spine degenerative arthritis, 10 percent; left and right lower extremity (sciatic nerve) peripheral neuropathy, 10 percent, each; left foot plantar fasciitis, 10 percent; tinnitus, 10 percent; hypertension, 10 percent; left and right leg varicose veins, 10 percent, each; left and right wrist carpal tunnel syndrome, 10 percent, each; right foot plantar fasciitis with calcaneal spur, 10 percent; and thoracic spine degenerative disc disease (DDD) status spinal fusion, 10 percent) were rated 90 percent, combined, and are reasonably shown to have been of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW From February 22, 2016 to July 31, 2019, the schedular rating criteria for a TDIU rating were met and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1968 to December 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2016 Department of Veterans Affairs (VA) rating decision. In his August 2017 VA Form 9, he requested a Board hearing, and was scheduled for such hearing in March 2021. In February 12, 2021-dated correspondence, the Veteran withdrew the hearing request. [From December 24, 2015 (date of TDIU claim) to February 22, 2016, the Veteran's service-connected disabilities were assigned a 100 percent schedular rating (and from 2013 he has been in receipt of special monthly compensation (SMC) for loss of use of a creative organ). Throughout from July 31, 2019, his service-connected disabilities have been assigned a 100 percent schedular rating (and from August 13, 2019 to October 1, 2019, he was in receipt of SMC at the housebound rate, based on a temporary total rating for his back disability with other service-connected disabilities independently rated 60 percent or higher). Therefore, from December 24, 2015 to February 22, 2016 and from July 31, 2019 to the present time, the matter of entitlement to a TDIU rating is moot and will not be addressed; the issue is characterized accordingly.] Entitlement to a TDIU rating from February 22, 2016 to July 31, 2019 is granted. A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to maintain a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 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 impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Total disability will be considered to exist when there is present 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. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (CAVC) defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The dispositive question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board notes that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Under 38 U.S.C. § 1114(s), SMC is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the CAVC determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). In Buie, the CAVC held that a TDIU rating based upon multiple disabilities does not satisfy the requirement of a single disability requirement of 38 U.S.C. § 1114(s). Throughout the appeal period, the Veteran's service-connected orthopedic disabilities (left and right shoulder arthritis, rated 20 percent, each; cervical spine and thoracic spine arthritis, at least 10 percent, each; and left foot plantar fasciitis, 10 percent and right and left carpal tunnel, 10 percent, each) were rated more than 40 percent combined, and because they are considered a single disability for TDIU purposes and the total combined rating was 90 percent met the schedular rating requirement for a TDIU rating in 38 C.F.R. §4.16 (a). In a December 2015 VA Form 21-8940 (TDIU application), the Veteran reported that he last worked in October 2015, where he worked 40 hours per week as a transit vehicle electronic technician (TVET) for the Bay Area Rapid Transit (BART) and last worked in November 2015, when he was working 10 to 25 hours per week as a self-employed handyman. He reported he left stopped working because he became too disabled to work due to his heart disease, bilateral wrist carpal tunnel syndrome, back and neck arthritis. He reported he completed high school and also had training on BART train maintenance. On February 2016 VA examination, the Veteran reported that he experiences tingling and numbness in his hands (worse with repetitive and strenuous activities); the examiner opined that the carpal tunnel syndrome did not functionally impair his ability to work; he can perform both physical and sedentary employment and perform all activities of daily living (ADLs) and instrumental activities of daily living (IADLs) without any limitation. The examiner stated the back condition negatively impacted ability to work, as the Veteran was is limited in heavy or overhead lifting (from mid-chest level and above), bending, twisting, tilting on an occasional basis and requires alternating sitting and standing, but can engage in light physical and/or sedentary work. The examiner stated the Veteran's heart condition functionally impaired his ability to work; his functional level is close to a metabolic equivalent of task (METs) level 5 (consistent with activities such as walking 1 flight of stairs on occasion), and can perform light physical work. On March 2016 VA examination, the examiner opined that the Veteran's bilateral shoulder arthritis functionally impaired his ability to work as shoulder pain limits use of arms overhead or in front of him. (He noted that the Veteran retired from BART last year due to lack of stamina after his myocardial infarction (MI) and bypass, but shoulder pain limited his work.) In a July 2016 private treatment record, a physician noted 1) the Veteran's coronary artery disease (CAD) causes him to experience dyspnea with short walking distances (e.g. walking from the parking lot to the clinic takes him 4 to 5 minutes to recover, which puts him in the range of 3-4 METs); he hires someone to care for his yard (since he is unable to do so himself anymore), 2) his low back pain (due to degenerative disc disease (DDD) and spinal stenosis)) makes him unable to sit for more than 15 minutes at a time and lift objects of more than minimal weight, 3) his carpal tunnel syndrome (which is chronic, and for which he wears splints on a regular basis) renders him unable to engage in desk work for any length of time, as the repetitive motion of working on a keyboard causes exacerbation of symptoms, and 4) his neck pain (due to DDD at C3-7) had worsening pain over the last year. The physician opined that the Veteran is unable to sustain any meaningful employment (due to physical limitations from various musculoskeletal complaints and CAD). An August 2016 statement (from the Veteran) notes: 1) he hired someone to do yardwork in 2015 since it is too strenuous for him to handle, 2) his heart condition has deteriorated to the point that he cannot walk up a flight of stairs without getting lightheaded and dizzy (with shortness of breath); he must sit down and wait for his head to clear before continuing to walk, 3) he could lose the use of his left arm due to the problems in his neck permanently pinching off the nerves (according to a VA doctor); the same symptoms have also started in his right arm, 4) he has intermittent loss of feeling when he urinates and less often when he defecates; he has been unable to urinate on occasion (it takes him 3 or 4 tries in 1 hour to eventually urinate), and 5) he cannot do sedentary work (because repetitive motion work exacerbates his bilateral wrist carpal tunnel syndrome and he cannot sit for long periods of time due to back problems). On October 2019 VA back examination, the examiner noted the Veteran had spinal fusion in November 2017 and August 2019 due to bowel and bladder symptoms (which resolved after surgery) and has continued to have low back stiffness/pain since his operations. The examiner noted that he was unable to sit or stand longer than 15 minutes, bend, stoop, and lift more than 5 lbs. without increased pain; and had decreased sensation in the medial left calf area. On October 2019 VA neck examination, the examiner noted that the Veteran is unable to sit longer than 20 minutes and work overhead; he had difficulty turning his head while driving without increased pain. On January 2020 VA back examination, the Veteran reported that his back hurt when washing dishes and doing household chores. The examiner checked the box "no" for "back condition did not impact [the Veteran's] ability to work." On January 2020 VA peripheral nerves conditions (PNC) examination, the examiner checked the box "no" for "PNC and/or peripheral neuropathy did not impact [the Veteran's] ability to work." On February 2020 VA PNC examination, the examiner checked the box "yes" for "PNC and/or peripheral neuropathy did impact [the Veteran's] ability to work." He noted the Veteran had difficulty typing or writing more than 20 to 30 minutes, lifting or carrying more than 25 lbs., pushing and pulling more than 25 lbs., and using tools more than 10 minutes. On April 2020 VA diabetes examination, the examiner noted the Veteran had difficulty walking and standing more than 20 minutes; she advised no strenuous activity and no heavy lifting of more than 10 lbs. On April 2020 VA male reproductive organ conditions examination, the examiner noted his erectile dysfunction (ED) negatively impacts ability to work, as the Veteran needs frequent restroom breaks. On April 2020 VA hypertension examination, the examiner stated that hypertension impacted [the Veteran's] ability to work; she advised no strenuous activity and no heavy lifting of more than 10 lbs. On April 2020 VA heart conditions examination, the examiner noted the Veteran had difficulty walking and standing more than 20 minutes; she advised no strenuous activity and no heavy lifting of more than 10 lbs. For the most part the Veteran has been employed or self-employed in manual labor type work, and is not shown to have education or training for work of a light non-physically demanding nature. His service-connected disabilities adversely impact his ability to maintain both physically demanding work (because his diabetes, hypertension, back and heart conditions preclude heavy lifting, prolonged standing, prolonged walking and climbing stairs) and work that can be done seated (because his back, neck, and carpal tunnel disabilities preclude prolonged use of his upper extremities). The Board acknowledges that a January 2020 VA examiner checked "no" for "back condition did not impact his ability to work" and for "PNC and/or peripheral neuropathy did not impact his ability to work." The Board finds that these opinions are outliers and thus, not persuasive evidence of the impact of back disability and carpal tunnel syndrome on his ability to work (medical evidence in the record otherwise clearly establishes that the Veteran's back disability and bilateral wrist carpal tunnel syndrome negatively impact his ability to work). The Board also notes the February 2016 VA opinion (that the Veteran's bilateral wrist carpal tunnel syndrome does not interfere with his ability to work, as he can perform both physical and sedentary employment and perform all ADLs and IADLs without any limitation). However, there was not sufficient explanation why a compensable carpal tunnel would have no impact on manual labor work, such as the Veteran had engaged in or of what evidence showed that he could perform "both physical and sedentary employment"; the overall record suggests otherwise. The July 2016 private opinion (that carpal tunnel syndrome renders the Veteran unable to perform desk work for any length of time), and February 2020 VA opinion (finding difficulty typing and writing more than 20 to 30 minutes, lifting and carrying more than 25 lbs., pushing and pulling more than 25 lbs., and using tools more than 10 minutes) cannot be discounted, and are supportive of the TDIU claim. The evidence is at least in equipoise as to whether carpal tunnel syndrome has impacted on the Veteran's ability to work. The February 2016 VA opinion did not address the Veteran's assertions of tingling and numbness in his hands, which the Board observes that he is competent and credible to report. Although VA examiners have indicated on multiple examinations that the Veteran should be able to perform light work duties, the overall evidence persuasively shows that the service-connected disabilities, taken as a whole, are such that they preclude him from maintaining regular, substantially gainful employment. The Board finds that while the opinions indicate that the service-connected disabilities individually do not preclude employment, their cumulative effect is such that he would be unable to maintain regular substantially gainful employment consistent with his education and work experience. Resolving any reasonable doubt in his favor, as required, the Board finds the evidence for and against the claim is at least in equipoise, and that a TDIU rating is warranted for the period in question. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Regarding any further SMC, the Board notes that except for the period for which SMC was awarded, the Veteran has not had a single disability rated 100 percent (and TDIU is being awarded based on the combined effect of his service connected disabilities). Thus, a threshold legal requirement for SMC at the housebound rate is not met at any other time during the period for consideration, and further consideration of the matter is not warranted. Considering the foregoing, the Board finds it reasonably shown that from February 22, 2016 to July 31, 2019, the Veteran's service-connected disabilities resulted in limitations incompatible with regular substantially gainful employment consistent with his education and work experience. Accordingly, the criteria for establishing entitlement to a TDIU rating were met and a TDIU rating is warranted for throughout that period. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.