Citation Nr: 21016236 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 12-33 617 DATE: March 22, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran completed a GED and one year of college and has not worked since February 2008; he had experience as a police officer. 2. For the period on appeal, the Veteran has been unemployed and the Veteran’s service-connected disabilities, which resulted from the same accident, have a combined rating of 60 percent; these include: thoracolumbar scoliosis with degenerative joint and disc disease, rated as 40 percent disabling, residuals, gunshot wound, right thigh with healed simple fracture, mid-shaft of right femur and retained foreign bodies and with shortening of the right lower extremity (“residuals of gunshot wound”), mild incomplete paralysis of the sciatic nerve of the right lower extremity associated with thoracolumbar scoliosis with degenerative joint and disc disease (“right lower extremity radiculopathy”), rated as 10 percent disabling, and mild incomplete paralysis of the sciatic nerve of the left lower extremity associated with thoracolumbar scoliosis with degenerative joint & disc disease, (“left lower extremity radiculopathy”), rated as 10 percent disabling. 3. The Veteran’s service-connected disabilities, at least as likely as not, preclude him from maintaining substantially gainful employment consistent with his education and work history. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been more nearly approximated during the period covered by this claim. U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1971 to January 1974. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to a TDIU. In February 2010, VA received the Veteran’s Notice of Disagreement (NOD). In October 2012, the RO issued a Statement of the Case (SOC). In November 2012, VA received the Veteran’s VA Form 9 appeal to the Board. In October 2015, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) who no longer serves as a VLJ at the Board. A transcript of that testimony is of record. In December 2015 and October 2018, the Board remanded the case for further development and adjudicative action. In an August 2020 brief, the Veteran’s representative noted that the issue of service connection for fecal incontinence, which was referred by October 2018 but not adjudicated by the RO, had not been raised by the Veteran and was not addressed in the brief. Accordingly, the issue of service connection for fecal incontinence is not currently before the Board. In January 2021, the Board advised the Veteran of his right to an additional hearing before another VLJ. In February 2021, the Veteran declined the option for another hearing. Entitlement to a TDIU. The Veteran asserts that his service-connected disabilities prevent him from maintaining substantially gainful employment. Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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, 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. §§ 3.340, 3.341, 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court 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 a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. In determining unemployability, consideration should be given to the veteran’s prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. The Veteran submitted a VA Form 21-8940, claiming unemployability in July 2009. At that time, and since, the Veteran’s combined disability rating has met the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities included thoracolumbar scoliosis with degenerative joint & disc disease, rated as 40 percent disabling, residuals of gunshot wound, rated as 20 percent disabling, right lower extremity radiculopathy, rated as 10 percent disabling, and left lower extremity radiculopathy, rated as 10 percent disabling. The combined schedular rating is 60 percent as of March 8, 2010. Notably, in the October 2018 Board decision, the Board concluded that all of the disabilities listed above “stem from the same right medial gunshot wound and fractured femur,” which resulted from a shooting accident during the Veteran’s active service. Therefore, as these disabilities result from the same accident, the Veteran had one disability rated as 60 percent disabling for purposes of TDIU as of July 7, 2009, the date that the Veteran’s claim for a TDIU was received. See 38 C.F.R. § 4.16(a). As of March 8, 2010, however, the Veteran’s service-connected disabilities also included cervical strain with degenerative arthritis of the spine associated with thoracolumbar scoliosis with degenerative joint disease (“cervical strain with degenerative joint disease”), ratable as 10 percent disabling, right upper extremity radiculopathy associated with cervical strain and degenerative arthritis of the spine (“right upper extremity radiculopathy”), ratable as 20 percent disabling, and left upper extremity radiculopathy associated with cervical strain and degenerative arthritis of the spine (“left upper extremity radiculopathy”), ratable as 20 percent disabling. Therefore, for the period from March 8, 2010, discussion of the service-connected cervical strain with degenerative joint disease and bilateral upper extremity radiculopathy is necessary. Accordingly, the only remaining question is whether the Veteran’s service-connected disabilities preclude substantially gainful employment consistent with his education and work history. The Veteran completed a GED and one year of college. According to the Veteran’s VA Form 21-8940 Application for Increased Compensation Based on Unemployability, received on July 7, 2009, the Veteran’s employment history includes work as police officer, including as a detention officer and chief of police. He worked “on and off” in police for 25 years. See January 2010 VA examination report. Regarding the impact of his service-connected disabilities on his employment, in July 2020, the Veteran underwent a functional capacity evaluation (FCE). During the FCE, the private examiner noted symptoms of “constant” neck and lower back pain, with frequent radiation to bilateral upper and lower extremities, occasional giving way of the lower extremities, and a leg length discrepancy due to the in-service gun shot wound. The Veteran reported inability to stand, walk, or sit for more than 20 minutes. Based on the FCE results, the private examiner opined that the Veteran was not able to work. In this regard, he noted that the Veteran would not be able to perform sedentary work because sedentary work “requires constant sitting” and the Veteran demonstrated “inability to maintain any prolonged position for more than 15-20 minutes.” Lifting ability was also limited due to inability “to maintain any position long enough to qualify for more frequent lifting.” The Veteran’s VA treatment records, private treatment records, and VA examinations reflect that the Veteran’s level of impairment has remained consistent throughout the period on appeal. Specifically, VA treatment records from May 2009 show chronic lower back pain which caused the Veteran to be shaky and unsteady. See physician note dated May 7, 2009. VA treatment records from April 2011 indicate “pain all over his spine.” Pharmacy medication note dated April 19, 2018. In June 2011, the Veteran reported “inability to flex/extend all fingers at times,” back pain upon movement, that his right leg “’dies’ without warning and causes him near falls,” and that pain radiates down the bilateral lower extremities. See physical therapy evaluation dated June 2011. The pain resulted “in extreme pain while dressing” and difficulty walking long distances. Regarding the residuals of a gunshot wound, the Veteran’s leg discrepancy resulted in an altered gait. Notably, in April 2016, the Veteran received VA examinations for his back and neck. The examiner also provided an opinion regarding the Veteran’s ability to work. In this regard, he opined that the Veteran would not be able to perform arduous work but could perform sedentary work. The examiner provided no indication that the Veteran’s service-connected disabilities resulted in interference with sitting. Notwithstanding, in a February 2016 VA examination report for fecal incontinence, another examiner implied that the Veteran’s physical disabilities caused him to be unable to get to the bathroom in a timely fashion. After considering all of the evidence of record, including the Veteran’s statements and the medical evidence, the Board finds that the preponderance of the evidence shows that the Veteran’s service-connected disabilities, in conjunction, preclude performance of substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77 F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the July 2020 FCE and VA treatment records throughout the period on appeal show impairment resulting in diminished employability prospects due to symptoms such as severe and chronic back and neck pain with radiation to the upper and lower bilateral extremities and the leg discrepancy due to residuals of the gunshot wound. These records show that the Veteran’s physical impairments, which include inability to sit, stand, or walk for extended periods, result in inadaptability to work consistent with the physical demands of the Veteran’s prior employment. Although the Veteran’s work experience involves largely sedentary work, the evidence shows that the Veteran is precluded from maintaining both sedentary and physically active employment. Regarding the April 2016 opinion on unemployability, there is no indication that the examiner addressed the Veteran’s lay statements showing inability to sit for long periods of time. Notably, the July 2020 FCE examiner found that the Veteran “passed 34/38 validity criteria during the FCE, [or] 89%, which suggests good effort and valid results which can be used for medical and vocational planning” and “no symptom/disability exaggeration behavior by our criteria.” As such, more weight is given to the July 2020 FCE, VA treatment records covering the period on appeal, and the Veteran’s credible statements. Thus, given the lay and medical evidence indicating the Veteran’s functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence supports the Veteran’s claim for a TDIU. Accordingly, the assignment of a TDIU is warranted for the period covered by this claim. See Geib, 77 F.3d at 1354. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.