Citation Nr: 21006385 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-47 016 DATE: February 4, 2021 ORDER Entitlement to total rating based upon individual unemployability due to service connected disabilities (TDIU) for the appeal period prior to August 12, 2012 is granted. FINDING OF FACT For the appeal period prior to August 12, 2012, the Veteran was unable to obtain and maintain employment due to his service connected disabilities. CONCLUSION OF LAW The criteria for TDIU for the appeal period prior to August 12, 2012 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1973 to January 1977, from April 1977 to April 1980, and from August 1989 to July 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 decision, the Board denied the Veteran’s claim for a TDIU prior to August 2, 2012. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In September 2020, Court remanded the matter back to the Board for re-adjudication. In May 2016, the Veteran, through his representative, submitted correspondence to VA in support of his pending claims for increased rating. The representative asserted that the Veteran was unemployable as a result of his service-connected disabilities and submitted a completed Application for Increased Compensation based on Unemployability and a vocational employability assessment completed by a vocational rehabilitation expert. As such, it follows that the Veteran has reasonably raised a request for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (providing that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather can be part and parcel of a claim for an initial or increased rating for a disability). Therefore, it follows that the request for TDIU has been properly raised. In the October 2013 Substantive Appeal, the Veteran requested a hearing before of the Board by live videoconference. This hearing was scheduled to occur in March 2016. In March 2016, two prior to the Veteran’s scheduled hearing, the Veteran’s representative submitted a correspondence withdrawing the Veteran’s request for a Board hearing. There are no other hearing requests or requests to reschedule of record, so the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(e). 1. Entitlement to TDIU for the appeal period prior to August 12, 2012 is granted. The Veteran contends that he was unemployable due to his service-connected disabilities for the appeal period prior to August 2, 2012. Specifically, the Veteran contends that his service connected disabilities render him totally unable to obtain and maintain employment, so as to warrant a grant of TDIU. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. If the schedular rating is less than total, TDIU may still be assigned 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The central question in a TDIU determination is whether Veteran is unable to secure or follow a substantially gainful employment due to his service-connected disabilities. Hatlestad v. Brown, 5 Vet. App. 524 (1993). A finding of TDIU is appropriate “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.” 38 C.F.R. §§ 3.340(a)(1), 4.15. 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). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by non-service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In order to warrant a grant of TDIU, the record must reflect that circumstances, apart from non-service-connected conditions, place the Veteran in a different position than other veterans having the same compensation rating. The sole fact that a veteran 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 or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s representative argues that the schedular requirements for TDIU are met, as the Veteran’s mental disorder was granted service connection secondary to his service-connected cervical spine condition, and hence qualifies as a single disability under 38 C.F.R. § 4.16, with a combined rating of 70 percent. The Board accepts this argument and finds therefore that the Veteran meets the threshold schedular requirements for TDIU. The Board will thus proceed to determine whether the Veteran is unable to secure or follow a substantially gainful employment due to the service-connected disabilities, as is required to be shown for a grant of TDIU. Hatlestad v. Brown, supra. Prior to August 2, 2012, the Veteran was service-connected for the following conditions: adjustment disorder with depressed mood, rated at 30 percent effective August 10, 2010; status post laminectomy of the cervical spine, rated at 40 percent effective March 28, 2002; and residuals of a bilateral herniorrhaphy, rated noncompensable (zero percent), effective August 1, 2000. From the period of March 28, 2002 to August 10, 2010, the Veteran’s combined rating was at 40 percent. Beginning on August 10, 2010 and continuing until August 2, 2012, the Veteran’s combined rating was 60 percent. Effective August 2, 2012, the Veteran’s combined rating increased to 70 percent and he is already in receipt of TDIU from August 2, 2012 onwards. The period of August 10, 2010 to August 2, 2012 is the relevant period that is the focus of this TDIU inquiry. The Veteran’s representative has argued that the issue of entitlement to TDIU is an adjudicatory – not medical – determination, and one that must be analyzed by VA adjudicators, not VA medical examiners. See Delrio v. Wilkie, 32 Vet. App. 232, 242-43 (2019). The Board acknowledges this point, and as such, will review the evidence of record with a focus on the extent that the Veteran’s conditions preclude him from substantially gainful employment. The Board notes the Veteran’s educational and vocational qualifications. The Veteran has completed high school and two years of college education. However, he is noted to have “no computer, keyboarding, or cell phone skills”. The Veteran was afforded a VA examination in October 2010, which addressed the Veteran’s symptoms and effect on his occupational and social impairment by his service-connected adjustment disorder with depressed mood and service connected cervical spine condition. The examination confirmed that the Veteran was not employed as of October 2010. In regard to the Veteran’s mental disorder, adjustment disorder with depressed mood, the examiner responded in the negative to the question of whether the Veteran’s condition resulted in total occupational and social impairment. The examiner also answered in the negative as to whether the Veteran’s mental disorder caused deficiencies in his judgment, thinking, family relations, work, mood or school; and also negative concerning any reduced reliability or productivity due to the mental disorder as well. However, when asked to state a rationale, the examiner opined that the “patient is primarily limited by physical condition in that he is unable to lift in excess of 40 pounds and no one will hire him due to his physical condition. He states he is waiting to collect social security. He has adjustment disorder features associated with unemployment, marital separation, and finances.” This indicates strongly that the Veteran does indeed have difficulty in obtaining and maintaining employment because his inability to lift and carry objects would markedly interfere with his ability to perform his job, namely as a hardware salesman and as a supply clerk (both roles requiring the lifting and carrying of tools and equipment). Additionally, the examiner stated “no one will hire [the Veteran] due to his physical condition”, which directly speaks to the Veteran’s inability to obtain and maintain employment. The examiner went on to also opine that the Veteran suffered from “continuous 24 hour a day pain”, which put a great stress on the Veteran’s physical body, and rendered him less able to think or complete routine tasks “that most people take for granted”. The October 2010 VA examiner then went on to consider the Veteran’s cervical spine condition, on which he opined that the Veteran had difficulty raising his arms overhead, lifting 40 pounds or greater, and driving. The examiner noted that the Veteran suffered from daily pain flareups of moderate intensity with radiating pain going to both of his upper extremities and causing numbness and tingling. Range of motion testing was conducted as well and revealed measurements of flexion to 45 degrees, extension to 30 degrees, and objective evidence of pain noted upon movement. In regard to the condition’s effect on occupational ability, the examiner opined that the Veteran suffered from decreased mobility, difficulty reaching for objects, decreased strength in his upper extremity, increased absenteeism from work, and recurrent pain. The Veteran’s disabilities have also been considered by the Social Security Administration (SSA) for purposes of SSA disability compensation. In January 2011, SSA determined the Veteran to be disabled under SSA criteria, from March 7, 2009 onwards. This determination was given on the basis of the Veteran’s back (cervical spine) and mental disorder (affective disorder). The SSA Adult Function Report found that the Veteran could not lift his arms over his head due to neck pain, which worsened progressively to 2009, to the end of the Veteran’s employment in March 2009. SSA found that the Veteran was impaired from maintaining employment and accordingly determined him to be disabled. The Board has also reviewed a private vocational assessment submitted by the Veteran in support of his claim. This May 2016 private opinion from a vocational rehabilitation counselor found that the Veteran would be precluded from securing or maintaining substantially gainful and competitive level employment due to the functional limitations caused by his service connected disabilities. The counselor stated that he based his evaluation, in part, on a thorough review of the Veteran’s entire claim file and also upon a telephonic interview with the Veteran. The counselor opined that it is more likely than not that the Veteran’s service-connected disabilities have prevented him from securing and following substantially gainful employment since March 2009, when he last worked. The counselor noted the Veteran’s specific symptoms from his cervical spine disorder as weakness, pain and loss of range of motion, and difficulty lifting and carrying objects. The Veteran also reported of regular recurrent neck pain at an intensity level of 5 out of 10, which quickly escalate to 10 out of 10 upon physical exertion. The counselor then went on to note the Veteran’s specific symptoms from his mental disorder as constant anxiety with panic attacks occurring daily and lasting from two to thirty-six hours in duration, insomnia, whole body tremors, frequent mood changes, difficulty focusing and loss of short term memory. The counselor also noted that the Veteran had difficulty maintaining social and co-worker relationships, and that he was irritable and tended to avoid others. Considering the Veteran’s work history, the counselor opined that while the Veteran was not able to obtain a “sedentary” job (i.e. a job that would not require extensive physical movement and lifting/carrying objects) because he lacked proficiency in the usage of computer and keyboard, a basic skill required by sedentary occupations. The Veteran’s claim was previously referred to the Director of Compensation Service in February 2018 for consideration of TDIU. The Director determined that TDIU was not warranted because the evidence did not show any hospitalizations, surgical procedures, or intensive treatment for the Veteran’s service-connected conditions at any time during the period on appeal. After a thorough review of the evidence, the Board finds that the Veteran is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities for the appeal period prior to August 2, 2012. The record shows that the Veteran did not participate in gainful employment at any point during the appeal period. The Veteran’s employment history includes working as a hardware salesman and supply clerk, with his last employment being as a supply clerk in 2009. The record also shows that the Veteran’s status post laminectomy of the cervical spine has rendered him unable to lift his arms above his head and had difficulty in lifting and carrying objects due to a marked decrease in upper-body strength. The Veteran’s acquired mental disability has caused the Veteran to suffer from various impairments such as memory loss and social difficulties, including difficulty in getting along with others and maintaining relationships. The record indicates that the Veteran suffers from recurring, even daily, pain. The rehabilitation counselor’s opinion confirms the Veteran’s severe limitations in movement, ability to lift and carry objects, and recurrent pain, and furthermore, the rehabilitation counselor opines that such limitations render the Veteran precluded from obtaining and maintaining gainful employment. The rehabilitation counselor found that the Veteran is unable to secure alternative employment of a “sedentary” nature, i.e. a job that would not require him to lift and carry objects and engage in physical exertion, because the Veteran lacks the computer and technological skills generally required by most sedentary occupations. Furthermore, the Veteran’s mental disorder causes him various impairments such as memory difficulties and difficulty in getting along with others, including co-workers. Based on these aforementioned factors, the Board finds that the evidence is at least at equipoise in support of Veteran’s claim for TDIU for the period prior to August 2, 2012. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the requirements for a TDIU are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Kristy L. Zadora Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.