Citation Nr: 21007801 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 190411-8862 DATE: February 10, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure or follow all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.2, 4.16, 4.18. 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1977 to April 1980, from September 1981 to September 1985, and from November 1986 to November 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2019 Appeals Modernization Act (AMA) rating decision of the Department of Veterans Affairs (VA) Regional Office (RO in St. Petersburg, Florida. The Veteran timely appealed this AMA rating decision to the Board and requested the direct review option which limits the Board’s review to the evidence considered by the RO in its March 2019 decision. In a November 2019 Board decision, the Veteran’s claim for entitlement to a total disability rating based upon individual unemployability (TDIU) due to his service-connected disabilities was denied. The Veteran appealed the Board's March 2019 decision to the United States Court of Appeals for Veteran's Claims (Court), resulting in a Joint Motion for Remand (JMR). An August 2020 Court Order vacated the Board's decision denying service connection for TDIU and remanded the appeal for compliance with instructions in the August 2020 JMR. Entitlement to a TDIU The Board notes that as part of the JMR, the Court found, in essence, that the Board’s last decision erred in fully considering the entirety of the Veteran’s disability picture, to include all his service-connected disabilities. To this end, the Court found noted the Board’s reliance on only the February and March 2019 VA examinations, which only spoke to the Veteran’s peripheral neuropathy and psychiatric disabilities, individually, was in error. Furthermore, the Court found the Board failed to adequately consider, and/or failed to express sufficient consideration of the positive private vocational opinions of record regarding the Veteran’s ability to work. As such the Parties agreed that deficiencies in the Board’s analysis in the March 2019 decision preclude effective judicial review, and thus, remand was warranted. See Simington v. West, 11 Vet. App. 41, 45 (1998). The Board agrees; and accordingly, a re-examination of the competent lay and medical evidence of record, as discussed in the JMR, follows. The Veteran contends that he is entitled to a TDIU since his service-connected disabilities render him unemployable. VA received Form 8940-Veteran’s Application for Increased Compensation Based on Unemployability in April 2012 claiming inability to work due to upper and lower spine conditions since he last worked fulltime in September 2011. A request for information from Clay County Schools received in December 2012 noted that the Veteran resigned in June 2012. So as a preliminary matter, the Board finds that the Veteran is currently not gainfully employed. A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. 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 his age or impairment caused by disabilities that are not service connected. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38C.F.R. §4.16(a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341 (a); see also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of his service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App.at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38C.F.R. §§4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The Veteran has been granted service connection for degenerative disc disease of the cervical spine rated at 40 percent disabling; degenerative disc disease (DDD) of the lumbar spine rated at 40 percent disabling; depression rated at 30 percent disabling; radiculopathy of the right lower extremity rated at 20 percent disabling; tendonitis rated at 10 percent disabling; right ankle fracture residuals rated at 10 percent disabling; and, radiculopathy left lower extremity rated at 10 percent disabling. The Veteran’s combined disability rating reached 70 percent effective February 2007 at which point he was service-connected for both DDD of the cervical spine and of the lumbar spine at a 40 percent evaluations. As such, from the date of application in April 2012, the Veteran has met the criteria for consideration for entitlement to a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). In January 2008, the Veteran underwent a VA vocational rehabilitation evaluation. At that time, the Veteran was employed as a junior high social studies teacher that required him to be on his feet all day. However, due to his medical condition, he had to take multiple medical appointments each month, which exceeded the amount of sick and annual leave allotted each year by his job. He also noted that his orthopedic disabilities required him to take narcotic drugs, daily, to relieve pain, which he noted that his employer was unaware of, and therefore, worried about the implications of this in a school environment. The report ultimately concluded that since the Veteran was still employed at the time, that the VA’s previous determination with regards to vocational rehabilitation could not be overturned. In a March 2012 private ‘In-depth Neuropsychiatric Evaluation’, conducted by Dr. W. A., the Veteran was found to be ‘totally disabled’. While the private examiner’s analysis spoke to multiple disabilities, to include those non-service connected, in his conclusion, the examiner exclusively focused on the Veteran’s back disability and depression as to rendering the Veteran totally disabled and finding that there is no real “way we can get this man back into a work situation.” To this end, the examiner also spoke explicitly regarding the negative effects of content pain medication such as in the situation of the Veteran, and the need for adjustment. Overall, the examiner noted marked restriction in physical activity and marked ‘constriction’ of all interest in activity due to his psychiatric disability. VA received a statement from the Veteran’s treating physician, Dr. G.B., dated March 2013 noting his treatment of the Veteran since February 2010. Dr. G.B. stated that the Veteran’s most prominent symptoms were lumbar spine DDD which generated bilateral radiculopathies down both legs, and cervical spine pain, with numbness down both arms. In his opinion, the Veteran was disabled from working in view of the need for additional surgery after two failed back surgeries and major bouts with anxiety and depression. He noted, that the Veteran was jointly being followed by a multidisciplinary medical team that consisted of a neurosurgeon, who recommended lumbar spine surgery, a pain management specialist, who provided monthly lumbar spine injections (which produced only minimal relief), and a psychiatrist, who treated him for depression and anxiety. Dr. G.B. noted that, after conferring with each of these physicians, that there was consensus that the Veteran’s condition was chronic, severe, and likely to prevent him from achieving gainful employment. In July 2013, the Veteran’s pain medicine specialist noted that he recommended that the Veteran resign from his teaching position after a part-time return to work caused increased pain and instability. In August 2013, the Veteran was afforded VA examination regarding his back and neck disabilities. While the physical examinations revealed severe restrictions in range of motion, and increased pain, both examiners founds that such disability was not productive of functional loss so severe as to prevent sedentary employment, or light duty. In a March 2015 VA examination for the Veteran’s cervical spine, the Veteran’s condition, again, was noted to cause pain and limitation of motion. However, upon review, the VA examiner ultimately found that such condition did not cause any functional loss with regards to occupation. The Veteran underwent a December 2016 VA examination for mental disorders which confirmed a diagnosis of depressive disorder. Upon examination and interview, the VA examiner found that while the Veteran’s depressive condition was due to his pain and back disability, that such condition did not manifest with any significantly measurable symptoms. VA received an extensive lay statement from the Veteran in April 2018. The Veteran described having spinal fusion surgery in service after his lumbar spine issues progressed from an initial injury from parachute jumps. When the Veteran re-enlisted he necessarily transferred to a military occupational specialty of food inspector. A medical discharge was implemented and waived when the Veteran agreed to retire and file for VA benefits. After discharge a position in food inspection was precluded as his lumbar spine condition prohibited him from the required lifting and inspecting large beef carcasses weighing hundreds of pounds. The Veteran returned to school and obtained a degree in education. He underwent a second surgery to achieve pain relief which ultimately worsened his pain and resulted in bilateral radiculopathies and the need for methadone and oxycodone for pain management. At that time, the principal could only allow 10 days off during the school year, however, the Veteran was missing more days than permitted for medical reasons. In addition, the Veteran’s colleagues found him asleep at his desk and in his car during the school day from the effects of his pain medications. After he weaned himself off the pain medications, the Veteran started treatment with a neuropsychologist after he developed depression and anxiety due to unresolved pain. He took a 6 month leave of absence from teaching to avoid derogatory information showing on his teaching license so that he could return to teaching if his symptoms improved. At the time of the statement, the Veteran continued with strong medications, however, sitting and standing for more than 10 minutes resulted in unbearable pain and the neuropathy was not controlled by any medication. A statement from a teacher colleague of four years corroborated the Veteran’s claim of instances of finding him asleep in the classroom and passed out in his car in the parking lot. In January 2018 the Veteran was seen by a private neurosurgeon for a pain exacerbation to 9/10 level from the usual 6-7/10 level. Upon evaluation the physician noted that the Veteran had a stable fusion with a degenerative cervical disc just below the fusion. In May 2018 it was noted that 50 percent pain relief was achieved in back and legs after monthly spinal injections with the top of his feet still burning. The Veteran’s neck pain and arm and hand weakness were becoming more noticeable. In September 2018 VA received a private Vocational Assessment performed that month. The examiner conducted an in-person interview and recited pertinent parts of his review of the entire claims file in the report. The examiner noted that the Veteran had been in treatment for his service-connected disabilities for many years, and attended regular doctors’ appointments and was compliant with treatment recommendations but still had severe back pain, leg pain and numbness and a depressed mood on a daily basis due to these disabilities. Physical disabilities included standing for 10 minutes requires him to move to a reclining seated position, sitting is limited to 10 minutes, he had constant pain in his legs which caused fatigue, he used a cane, had difficulty completing his activities of daily living and sleeping more than two hours a night due to pain. His mental symptoms included inability to stay on task due to pain, rumination about his situation, worsening depression, due to his inability to teacher, being easily overwhelmed with crying spells, and self-isolation, to include not leave home. The rehabilitation counselor ultimately concluded that the Veteran’s service-connected disabilities caused occupational limitations that eliminated the ability to perform even sedentary work. The Veteran underwent VA examinations in February 2019 and March 2019 to evaluate his service-connected peripheral nerve and depression disabilities. The VA examiner reported that the Veteran’s spine and peripheral nerve conditions limit his ability to comfortably sit or stand for more than 5 minutes each or lift more than five pounds without pain. The VA psychologist examiner reported that the Veteran’s depressive disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The VA examiner opined that the Veteran’s depression would contribute to low stress tolerance in conflictual interpersonal situations in a work setting. His anxiety level may contribute to anger dysregulation. The combined impact of his depression with anxiety may contribute to missed workdays due to not feeling motivated to attend. The Board finds that looking at the totality of the Veteran’s disability picture, to include both his physical and psychiatric disabilities, the Board must find that the Veteran is, and has been, unemployable due to his service-connected disabilities, since his retirement in 2012. To this end, the Board finds that the evidence is in the Veteran’s favor, with all of his treating physicians, that is, those medical professionals whom actually treat his disabilities, rending opinion that these condition do in fact prevent employment, to include sedentary employment. The Board finds that such opinions to be highly probative as they are written by those medical professionals who have treated the Veteran firsthand and have intimate knowledge of the Veteran’s disability picture. In addition, the Board finds the September 2018 private vocational opinion also highly probative as it assesses the Veteran’s disability picture, as it pertains to any potential employment the Veteran may be eligible to hold. While both the private vocational report and the private treating physician opinions point out other non-service-connected disabilities, the Board finds that a thorough review of the actual opinions reveals that all such opinions focused exclusively on the Veteran’s service-connected disabilities; and as such, the Board find these positive opinions dispositive of the claim. The Board notes that, while all the VA examinations of record, does not find a total loss to occupational function due to his service-connected, back, neck, neuro, and psychiatric disabilities, as to prevent the Veteran from gainful employment, such evaluations do not evaluate the Veteran’s entire disability picture. Here, the VA examiner offers an opinion addressing the Veteran’s work limitation based solely upon the single disability reviewed/examined and not the entirety of the Veteran’s service-connected disabilities. As such, the Board finds that such VA examination opinions, are of limited probative value. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. The Board has considered, as it is required to do, all the relevant evidence, medical and otherwise, including the Veteran’s knee and ankle disabilities, regarding the Veteran's employability. The Board finds the private opinions of record, and described herein, by the Veteran’s treating physicians, and the September 2018 vocational specialist opinion, to be highly probative with respect to establishing the Veteran’s ability to work. Such evidence, when combined with the treatment records and the Veteran’s lay statements, firmly establishes that the Veteran cannot obtain or sustain gainful employment. Accordingly, the Board finds that entitlement to a TDIU is warranted, and the Veteran’s claim must be granted. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.