Citation Nr: 21013940 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-07 590 DATE: March 10, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) prior to July 13, 2013 is denied. Entitlement to a TDIU from July 13, 2013 is granted. FINDINGS OF FACT 1. Prior to July 13, 2013, the Veteran had substantially gainful employment full-time. 2. Resolving reasonable doubt in favor of the Veteran, from July 13, 2013 onward, the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to July 13, 2013, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From July 13, 2013, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from November 1984 to November 1988 and from April 1989 to April 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from December 2011, October 2016, October 2017, and November 2020 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Court of Appeals for Veterans Claims (Court) granted an April 2019 Joint Motion for Partial Remand (JMR) and remanded the issue to entitlement to TDIU prior to April 19, 2017, to the Board. The JMR concluded that the issue of entitlement to TDIU had been in appellate status before the Board at the time of its December 2017 decision denying entitlement to increased ratings for the Veteran’s service-connected low back disability. Although the Board noted that the issue of entitlement to TDIU had been granted by the VA RO in an October 2017 rating decision, the JMR found that the Board erred in not considering entitlement to TDIU for the period prior to April 19, 2017, as “the issue of entitlement to TDIU became a part of [the Veteran’s] claim for an increased rating for the disability of his lumbar spine and attained appellate status along with that latter issue.” Pursuant to the April 2019 JMR, the Board remanded the claim for TDIU for additional development in August 2019, to include referral to VA’s Director, Compensation Services to consider the TDIU claim on an extraschedular basis. During the pendency of the claim, the RO, in a November 2020 rating decision assigned an earlier effective date of April 28, 2016 for the grant of a TDIU on a schedular basis. TDIU Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Provision 38 C.F.R. § 4.16(a) establishes that 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 reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. 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 a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Here, during the pendency of his previous claim for an initial increased rating for his service-connected low back disability, the Veteran filed for TDIU in September 2016. Thus, the Veteran’s claim for TDIU is considered part and parcel of his previous initial increased rating low back claim pursuant to Rice v. Shinseki, 22 Vet. App. 477 (2009). Although the low back initial increased rating claim was decided in a December 2017 Board decision and is not presently before the Board, the TDIU claim remains on appeal. As found in the April 2019 CAVC decision and reiterated in the August 2019 Board remand, although the Board noted in its December 2017 decision that the issue of entitlement to TDIU had been granted by the VA Regional Office (RO) in an October 2017 rating decision and as such did not consider the TDIU claim further, the JMR found that the Board erred in not considering entitlement to TDIU for the period prior to April 19, 2017, as “the issue of entitlement to TDIU became a part of [the Veteran’s] claim for an increased rating for the disability of his lumbar spine and attained appellate status along with that latter issue. As noted above, during the pendency of the appeal, a November 2020 rating decision granted an earlier effective date for the grant of TDIU, effective April 28, 2016. Additionally, from November 20, 2009 to January 1, 2010, the Veteran was in receipt of a temporary 100 percent rating following surgery due to his service-connected left shoulder disability. Thus, entitlement to a TDIU is moot during this period. As such, the period discussed herein for the TDIU claim is from January 1, 2010 to April 28, 2016. From January 1, 2010 to April 5, 2012, the Veteran had a combined evaluation of 30 percent: low back disability as 20 percent disabling and left shoulder disability as 10 percent disabling. From April 5, 2012 to June 2, 2015, the Veteran had a combined evaluation of 40 percent: low back disability as 20 percent disabling, left shoulder disability as 10 percent disabling, left lower extremity radiculopathy as 10 percent disabling, and right lower extremity radiculopathy as 10 percent disabling. From June 2, 2015 to April 28, 2016, the Veteran had a combined evaluation of 60 percent: low back disability as 40 percent disabling, left shoulder disability as 10 percent disabling, left lower extremity radiculopathy as 10 percent disabling, and right lower extremity radiculopathy as 10 percent disabling. The Board notes that effective June 2, 2015, the Veteran had a combined rating of 60 percent for his service-connected low back disability, right and left lower extremity radiculopathy, and left shoulder disability. As these disabilities arise from the same common etiology (i.e., the lumbar spine and bilateral lower extremity radiculopathy), or, alternatively, affect a single body system, such as the musculoskeletal system (i.e., the lumbar spine and left shoulder), the Veteran meets the schedular requirement for TDIU as of June 2, 2015, the Board may assign a TDIU in the first instance as of June 2, 2015. See 38 C.F.R. § 4.16. Nevertheless, the TDIU claim for the period prior to June 2, 2015 has been referred and considered by the Director, Compensation Service for extraschedular consideration, the Board may proceed with consideration for the entire period on appeal. See Bowling v. Principi, 15 Vet. App. 1. (2001). Factual Background In a January 2010 VA examination, the Veteran reported his left shoulder was better following his fourth surgery in 2009 but that he still had aching pain. See January 2010 VA Examination. The examiner noted the Veteran was right hand dominant. The examiner noted the Veteran was employed full-time as a modified maintenance central clerk. The examiner noted the Veteran had problems with lifting and carrying and decreased strength in the upper extremity with pain. In a June 2011 VA examination, the examiner noted the Veteran was employed full-time in machine maintenance. See June 2011 VA Examination. The examiner noted the Veteran’s decreased mobility and increased pain with increased pushing, pulling, and lifting activities. An April 2013 VA treatment record noted the Veteran’s reports that he was working full time in shipping and receiving. See June 2016 CAPRI. April 2013 VA examinations noted the Veteran’s back pain that radiated to both hips and down his legs and that he used braces and a cane on a regular basis for ambulation. See April 2013 VA Examination. The VA examiner noted the Veteran’s antalgic gait, lumbar radiculopathy, and that he had mild incomplete paralysis of the right sciatic nerve and moderate incomplete paralysis of the left sciatic nerve. The examiner noted the Veteran’s peripheral nerve condition and/or peripheral neuropathy did not impact his ability to work. A February 2014 VA treatment record noted the Veteran’s reports that he was having problems coping with pain and also reported feeling better as long as he did not have to go to work. See April 2015 CAPRI. He reported having problems with supervisors at work and reported that he was on workman’s compensation and receiving checks monthly related to his back pain. A March 2014 private treatment record noted the Veteran was still employed by the U.S. Postal Service (USPS) but there were no duties that he can perform with the prescribed restrictions and there is no active work. See June 2017 Medical Treatment Records – Furnished by SSA. The Veteran reported spine difficulty and some days painful trouble arising. The Veteran reported his cervical spine involvement in the mid spine and distally with bulges and other abnormalities and that there are bulges at the thoracic spine and in the low lumbar spine with nerve damage down from the knees with the left leg feeling swollen. In an October 2014 functional capacity evaluation report, the reviewing provider noted the Veteran was not currently working and reported that he has not worked since July 13, 2013. See April 2017 Medical Treatment Record – Non-Government Facility. The provider noted the Veteran had been offered a modified duty position and the job offer states that the employee will be accommodated as needed for the following job tasks: lifting floor to waist (up to 35 lbs. occasional) - meets demands with load elevated to 10 inches, lifting overhead (25lbs. occasional) - may provide platform to accommodate, occasional overhead reaching, patient self-limited to elevated lift to 10 lbs. secondary to pain, 2 handed carrying - meets demands, 1 handed carrying - meets demands, pushing/pulling (“medium level” lbs. of force) – should meet requirement based on demonstration on an occasional basis. The provider noted that today’s demonstrations will be considered safe minimal levels of function as opposed to upper limit maximums and that the Veteran should be appropriate for release at the attached restrictions. A November 2014 VA treatment record noted the Veteran’s reports that he has been away from his job for 18 months and that he was applying for a disability from the post office. See April 2015 CAPRI. A U.S. Department of Labor Office of Workers’ Compensation Programs Musculoskeletal Conditions Work Capacity Evaluation, dated March 2015, completed by a private physician, noted the Veteran’s conditions of asthma, cervical disc disease, lumbar disc disease, and torn rotator cuff. See May 2015 Third Party Correspondence. The evaluation noted the Veteran was not capable of performing his usual job without restrictions and unable to work eight hours per workday with physical restrictions. The evaluation noted the restrictions applied indefinitely and that maximum improvement had been reached. Regarding strength levels, the examiner noted sedentary and noted the Veteran was disabled to work due to his multiple problems. A May 2015 SSA record noted the Veteran’s reports he was in extreme pain since he did not take his pain medication. He reported that his pain medications prevented him from driving. See June 2017 Medical Treatment Record – Furnished by SSA. A review of the VA treatment records from 2013 show that the Veteran was advised not to drive and not to work with machinery due to the use of hydrocodone. See April 2015 CAPRI and June 2016 CAPRI. In a June 2015 VA examination, the examiner noted the Veteran’s reports of increased low back pain with radiating pain in both legs, feet, and toes. See June 2015 C&P Exam. The Veteran reported that he was unable to bend, flex, twist, kneel, or squat. The examiner found the Veteran’s thoracolumbar spine condition did not impact his ability to work. A March 2016 VA treatment record noted the Veteran’s reports of increased back pain and that he was having trouble with his job. See June 2016 CAPRI. He reported that he had been sent several job evaluations to see if he can change the area where he works. He stated that he had been sent to three places to do things he was not physically able to do and that his employment stopped paying him last May. He indicated that in September, he was told he should be back at work and that he went to an “II to investigate.” He stated it was clear in his record that he was not able to do the jobs they chose for him due to his back disability. He stated that his primary care physician informed his employer that he was not able to do the jobs offered due to his back and his mental conditions. A June 2016 SSA decision noted the Veteran’s severe impairments of localized primary osteoarthritis of the lumbar vertebrae, lumbosacral spondylosis, chronic pain syndrome, polyosteoarthritis, degenerative disc disease of the L5-S1, degenerative disc disease of the C3-C4, severe obstructive sleep apnea, obesity, and moderate restrictive ventilator impairment. See June 2017 Medical Treatment Records – Furnished by SSA. The decision noted the Veteran had at least 14 years of eduction and that his past relevant work as a mail processor was described as heavy. The decision found that the demands of the Veteran’s past relevant work exceeded the residual functional capacity and noted that considering the Veteran’s age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that he can perform. VA back conditions examinations in September 2016 and July 2017 noted the back conditions prohibits active physical labor but would not prevent sedentary labor. See September 2016 C&P Exam and July 2017 C&P Exam. A July 2017 VA shoulders examination noted the Veteran was limited from lifting and carrying, working overhead, or repetitive movements on the left side. See July 2017 C&P Exam. In an August 2018 Social Security Administration (SSA) disability determination, the Veteran was determined as disabled due to primary diagnosis of disorders of back and secondary diagnosis osteoarthrosis and allied disorders. See June 2017 Medical Treatment Records – Furnished by SSA. The disability was noted as beginning July 13, 2014. In a July 2020 VA memorandum from the Veterans Service Center Manager, recommended a grant on a schedular basis for TDIU from June 2, 2015 and a grant on an extraschedular basis form July 13, 2013 to June 2, 2015. See July 2020 Correspondence. In support of the recommendation, the memorandum noted the Veteran’s April 2013 VA examination that showed the Veteran’s use of braces and cane on a regular basis for ambulation due to back pain, noted the Veteran was gainfully employed with the USPS as a maintenance support clerk from June 1995 to July 2013, and had two years of college education with no reported degree attained, noted SSA records in August 2013 that indicated the Veteran’s unsteady gait and in May 2015 that showed epidurals were ineffective, noted SSA records showing he was awarded disability starting July 13, 2014 primarily due to service-connected disabilities. The memorandum also noted that the April 2013 VA examination showed bilateral lower extremity neurological impairments in addition to the back disability that would make it virtually impossible for the Veteran to maintain substantially gainful employment in the only known job he has had over 22 years due to the physical requirements of such a job. A November 2020 advisory opinion from the Director of Compensation Service found that although it is conceded that the Veteran’s service-connected conditions do cause functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions. See November 2020 VA Memo. The opinion acknowledged that a review of the file shows the Veteran worked at the post office until July 12, 2013 and that the Social Security Administration found the Veteran too disabled to work due to his back and other osteoarthrosis disorders. The opinion noted that a review of the evidence shows that the Veteran has painful, limited motion which would interfere with preforming physical labor but that the Veteran could still preform sedentary work. Entitlement to a TDIU prior to July 13, 2013. Preliminarily, the Board notes that the Veteran was employed full-time until July 2013. He worked as a mail processor for the USPS from May 1991 to July 2013. See September 2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran last worked full-time on July 12, 2013. See July 2017 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. The Veteran also reported that the date his disabilities affected his full-time employment and that he became too disabled as due to his service-connected disabilities was from July 13, 2013. See September 2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Additionally, here, unlike his noted later period of attempted work, the Veteran has present, nor asserted, nothing that would allow the Board/VA to infer that such employment was in any way considered a sheltered workplace, or that he was given special accommodations to remain employed. In fact, the Board notes that the evidence is to the contrary, that during the end of this period, the Veteran noted coping with pain, with no indication he was provided any special treatment. Considering the Veteran was gainfully employed until July 12, 2013, and he specifically indicated that his service-connected disabilities began affecting his ability to work, starting July 13, 2013, the claim for TDIU prior to July 13, 2013 is denied. Entitlement to a TDIU from July 13, 2013. The Board observes that the evidence does not include a medical opinion that addresses the Veteran’s employability based on only the Veteran’s service-connected disabilities in combination. However, the question of employability is ultimately one for the finder of fact and is not medical in nature. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The question on appeal is whether the Veteran could maintain employment during this period on appeal, due to his service-connected disabilities. These disabilities clearly limit the Veteran’s ability to do physical work. It is unclear the extent to which they limit the Veteran’s ability to do non-physical work. Insofar as the evidence suggests that the Veteran may have been able to do non-physical work during the period under consideration, the Board finds that such option is simply not realistic given the Veteran’s limited work and education history. In fact, the record shows that during the latter period of his employment with the USPS, he was assigned to modified employment positions due to his physical limitations but ultimately was unable to continue employment due to his service-connected disabilities. The Board highlights that the Veteran’s only employment post-service was with the USPS and that the duration of his employment was described as heavy. Although it was noted that he had two years of college education, there was no indication of an obtained degree or of any specialized training. Additionally, considering the limitation from performing any overhead activities, lifting and carrying, and repetitive tasks with the left upper extremity due to the left shoulder condition, and the limitations from bending, flexing, twisting, or squatting due to the low back disability, and limitation from driving due to the use of pain medication for his service-connected disabilities, this further limits any realistic sedentary employment. Considering the service-connected disabilities in combination, it appears the Veteran would be unable to transition from physical labor to sedentary labor based on his level of education, lack of special training, and limited previous work experience. Upon consideration of the functional impairment noted in the lay and medical evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is in at least relative equipoise that he has been unemployable due to his service connected low back disability, left shoulder disability, and right and left lower extremity radiculopathy since July 13, 2013. Therefore, entitlement to a TDIU on an extraschedular basis and schedular basis from July 13, 2013, forward, is warranted. 38 U.S.C. § 5107(b). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.