Citation Nr: 21029192 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-01 462 DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), effective October 15, 2019, is granted. FINDING OF FACT From October 15, 2019, but not earlier, the Veteran's numerous service-connected disabilities are reasonably shown to have been of such nature and severity as to have prevented him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW A TDIU rating is warranted from October 15, 2019, and not earlier. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1991 to May 1991, February 1995 to August 1995, November 1996 to July 1997, February 1999 to September 1999, September 2003 to June 2004, November 2004 to July 2005, February 2006 to June 2006, July 2006 to July 2007, December 2007 to July 2008, and September 2008 to September 2010 (and had additional periods of active duty for training). Originally, the matter before the Board of Veterans' Appeals (Board) on appeal was one seeking a higher rating for a thoracolumbar spine disability, arising from an August 2011 Department of Veterans Affairs (VA) rating decision. A September 2020 Board decision promulgated a decision on that claim but also remanded the case to the RO for development of the TDIU issue, which was added to the appeal because a TDIU claim is part of an increased rating claim when such claim is asserted by the Veteran or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Following development including a February 2021 rating decision which denied a TDIU rating, the case was returned to the Board. As was noted when the case was previously before the Board in September 2020, the Veteran was previously represented by Disabled American Veterans (DAV). In an August 6, 2020 letter, VA asked the Veteran to clarify whether he still wanted to be represented by DAV, considering his September 2018 appointment of a state service organization as his new representative, which then withdrew representation upon learning of DAV's involvement in the case. The letter informed the Veteran that he would be deemed unrepresented unless and until he completed and returned an enclosed VA form to appoint DAV (or another) representative. To date, he has still not responded. Therefore, the Board will proceed, acknowledging that the Veteran is a pro se appellant. Entitlement to a TDIU A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). During the period under consideration, the Veteran's service-connected disabilities included: unspecified anxiety disorder (rated 10 percent from September 13, 2010 and 50 percent from November 19, 2020); degenerative disc disease and degenerative arthritis of the thoracolumbar spine with disc herniation at the L4-5 region (40 percent from September 13, 2010); viral infection/Epstein-Barr virus resulting in chronic fatigue syndrome and reduced immunity (40 percent from November 19, 2020 and 20 percent before that date); radiculopathy of the right lower extremity (sciatic nerve) (10 percent from March 22, 2011 and 20 percent from December 9, 2015); right shoulder degenerative joint disease with impingement of the shoulder to include osteoarthritis of the acromioclavicular joint (10 percent from September 13, 2010 and 20 percent from November 19, 2020); left shoulder degenerative arthritis (10 percent from September 13, 2010 and 20 percent from November 19, 2020); right wrist strain with extensor tendonitis (10 percent from September 13, 2010), status post laparoscopic cholecystectomy (gall bladder removal) and constipation to include asymptomatic scar and hiatal hernia with GERD, esophageal stricture and lower esophageal ring resulting in mechanical dilation (10 percent from September 13, 2010); radiculopathy of the left lower extremity (sciatic nerve) (10 percent from March 22, 2011); radiculopathy of the right lower extremity (femoral nerve) (10 percent from October 15, 2019); radiculopathy of the left lower extremity (femoral nerve) (10 percent from October 15, 2019); right thumb strain (noncompensable); and fractured right foot, healed, high blood pressure, kidney stones, and appendectomy with asymptomatic surgical scar (0 percent, each). The combined ratings were 70 percent from September 13, 2010; 80 percent from March 22, 2011; 90 percent from October 15, 2019; and 100 percent from November 19, 2020. Thus, the Veteran's service-connected disabilities met the 38 C.F.R. § 4.16(a) schedular requirements for TDIU throughout the appeal period. For a veteran to prevail on a claim for TDIU, neither nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. The record must reflect some factor that places the veteran in a different category than other veterans with equal disability ratings. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran is capable of the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that the Veteran was unemployable due to the combined effects of his service-connected disabilities from October 15, 2019, and that a TDIU rating from that date (and not before) is warranted. The Board is aware that effective November 19, 2020, the Veteran has a 100 percent combined schedular rating, but consideration of a TDIU from that date would not be moot because in evaluating the ratings, there is a potential for an award of special monthly compensation under 38 U.S.C. § 1114(s), for statutory housebound benefits. Such is payable where a veteran has a single service-connected disability rated as 100 percent ("total") and has an additional service-connected disability or disabilities independently ratable as 60 percent or more that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. A TDIU rating based on a single disability may satisfy the statutory requirement of a "total" rating under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, in this case, the assignment of a TDIU is based on combined service-connected disability and not a single disability. In his application for TDIU received in November 2020, the Veteran reported that his thoracolumbar spine disability, bilateral lower extremity radiculopathies, chronic fatigue syndrome, bilateral shoulder disability, and anxiety disorder prevented him from securing or following any substantially gainful occupation. He indicated that he last worked full-time in September 2010, when he was discharged from the Army. He indicated that he has a college education and no other education or training since he became too disabled to work in September 2010. Service department records show that the Veteran served in the Army over the course of approximately 30 years, with many of those years in special forces/operations. On a VA social and industrial survey, he reported that he was deployed to numerous countries including Haiti, Dominican Republic, Israel, Columbia, Haiti, Bosnia, Kosovo, Iraq, and Afghanistan (his DD Form 214s provide corroboration for most of these locations). After his discharge in September 2010, VA records indicate his employment status as "retired." A July 2011 VA examination report noted he retired because he was eligible by age/duration of work and for medical reasons (physical problem); the Veteran related that he was "too wore out." Regarding the effects of his low back disability on occupational and usual daily activities at that time, the examiner found the assignment of different duties, increased absenteeism, decreased mobility, problems with lifting (over 15-20 pounds) and carrying, and limitations in the amount of sitting. This functional impairment assessment, given the Veteran's education, training, and employment background, does not reflect that he was unemployable, but that he would have restrictions. The Veteran himself did not believe he was unemployable because he sought VA assistance in re-training to obtain a job. VA Vocational Rehabilitation and Education (VR&E) records show that the Veteran applied for benefits in October 2011. On a Rehabilitation Needs Inventory form, he indicated that he was interested in a career in teaching or management and expected the VA program to help him obtain such credentials. On the same form, he described his most recent military jobs, serving as a commander and deputy commander, where among other things he managed and oversaw a staff of 30 personnel and trained soldiers in combat operations for OIF/OEF missions. In these positions, he stated that his transferable skills were in the areas of instruction, security, and threat analysis. VA determined the achievement of a vocational goal was reasonably feasible, and in a November 2011 letter the VA informed the Veteran that he met the qualifying criteria for VR&E services. At a November 2011 meeting, the Veteran expressed a desire to obtain a Master's degree in international conflict resolution (a field he had been involved in for over 20 years) so that he could teach at United States European Command or NATO facilities. He was tasked with researching employment options at US EURCOM for discussion at the next appointment later in the month, but did not appear for the meeting. A March 2012 VA letter to him the program was discontinued because he did not respond to letters. On a June 2014 VA examination of the back and lower extremity disabilities, the examiner remarked that they impacted on the Veteran 's ability to work. It was assessed that he was able to lift up to 20 pounds, walk a mile at one time or two miles in an 8-hour day, sit/stand for 20 minutes without changing position, sit up to six hours in a shift and stand up to two hours if permitted to move. Similar to the July 2011 VA examination, this functional impairment assessment does not reflect that the Veteran was unemployable, given his education, training, and employment background, but that he would encounter restrictions. VA outpatient treatment records in January and February 2015 show that the Veteran was seeking assistance with a job search as he had been unable to obtain employment since retiring from the military. He expressed an interest in offering equine therapy for veterans or returning to school for a Master's degree (he has claimed Vocational Rehabilitation did not want to pay for his schooling, but this is not demonstrated in the VR&E records). He indicated he had applied for seven or eight jobs that required security clearance (which, other records in the file indicate, he had had in the military). At a July 2015 Board hearing, the Veteran stated that he did not work. His testimony, however, did not reflect an assertion or belief on his part that he was incapable of work due to service-connected disability. In describing limitations due to his back disability, he stated that he was unable to sit for long periods. On a December 2015 VA examination of his back and lower extremity disabilities, the examiner remarked that the disabilities impacted his ability to work, and observed that the Veteran was unable to sit for his medical history, as he was in pain, and required frequent changes of position. (The examiner also noted that the examination was conducted during a flare-up.) Following the Veteran's report that he could not perform desk work or manual labor (he said that he had pain with walking and carrying kids/groceries and that the pain distracted him to the extent he was unable to focus), the examiner stated he was unable to perform desk work or manual work due to pain. VA outpatient records show that in August 2016, the Veteran complained of lack of energy and poor sleep. He also stated that his low back pain had worsened over the last five years as he has "cut back on exercise." Examination showed restricted range of motion of the lumbosacral spine in all planes, but there was no tenderness to palpation or paraspinal spasm and a straight leg raising test was negative. The August 2016 records note he had not had a sleep study, so he was scheduled for a study in October 2016 but did not appear, and in April 2017 it was noted he was unwilling to report for a sleep study at that time. (VA records in April 2016 note the Veteran's diagnosis of chronic fatigue syndrome and that he also had a sleep study consult in 2013 canceled due to an inability to contact him.) In August 2017, the Veteran was seen with intermittent numbness/tingling into the left thigh, with such "sciatic" pain radiating from his left lower back down the left lower extremity. He stated he was "roughed up [by local police] a bit a few days ago which exacerbated this painful condition." The assessment was intermittent left leg pain, with a notation that the examination was benign without weakness or sensory changes. In August 2018, the Veteran was seen in the emergency department with complaints of back pain after carrying a 40-pound child across the street (there was no numbness, tingling, or weakness in his legs, and flexion and extension of the lumbar spine were within normal limits). In August 2017, he presented with a request for his primary care physician (PCP) to sign paperwork on hunting (to allow him to hunt via a crossbow); he subsequently picked up his PCP-signed form. In April 2019, he was seen in the emergency department with complaints of back pain; he related that he "overdid things" while cleaning out his attic as he was preparing his house for sale (he had low back pain that did not radiate down his legs and the physician noted no acute neurologic deficits). On October 15, 2019 VA examination of the back and lower extremity disabilities, the examiner opined that the Veteran's disabilities impacted his ability to work, and observed that he was restricted in the ability to bend, lift, twist, sit/stand/walk for prolonged periods, and ride in a car for long distances. VA outpatient records in November 2019 indicate that the Veteran was seen for low back pain after jumping three feet down from the bed of his pickup truck three days earlier. He was ambulating with a cane and appeared to be in pain when rising from a chair. Assessments included acute low back pain and left lumbosacral strain, and he was referred for physical therapy. In December 2020, the Veteran underwent VA examinations of many service-connected disabilities. On evaluation of the back and lower extremity disabilities, the examiner noted the Veteran's report of severe flare-ups once a month, lasting one to two days. Regarding the functional impact of the disabilities, the examiner stated that due to chronic pain the Veteran avoided activities with bending, lifting, and twisting motions. On evaluation of the bilateral shoulder disabilities, the examiner stated that the Veteran was unable to lift more than 20 pounds and that he avoided carrying heavy loads and activities requiring a throwing motion. On evaluation of chronic fatigue syndrome, the examiner stated it impacted ability to work in that, according to the Veteran, he was limited in ability to perform occupational tasks due to excessive fatigue on a daily basis (he said he must rest intermittently throughout the day). On evaluation of his mental disorder, in terms of functional impairment, the examiner noted the following: he had extreme difficulties connecting/relating to civilians; his distrust of others impacted his ability to be led by superiors and to interact effectively with co-workers; his anxiety. including vigilance, impacted his efficiency and productivity; and he had extreme memory problems (trouble holding information in his mind for use and problems recalling information so that he was reliant on others to remember/recall information for him). Nevertheless, assessing the level of occupational and social impairment with regard to the mental disorder, the examiner summarized that there was occupational and social impairment with reduced reliability and productivity (i.e., he met the rating criteria for a 50 percent rating and not those for a higher rating to include total occupational and social impairment based on his anxiety disorder alone). Upon consideration of the totality of the lay and medical evidence discussed above, the Board concludes that the Veteran's service-connected disabilities, combined, were productive of such impairment that it may reasonably be found to have rendered him unemployable since October 15, 2019. Medical evidence, as previously noted, establishes that he had many restrictions from service-connected disability, but despite those imposed limitations he sought assistance in obtaining employment. Evidently, his efforts to obtain a job were unsuccessful. However, a TDIU award is not dependent upon whether or not the Veteran can find employment but on whether he is capable of performing the mental and physical activities of a position for which he is qualified. In that regard, there is no evidence that his inability to obtain a job (which he was seeking) was associated with any service-connected disability. Further, there is no medical opinion that expressly states he was unemployable due to service-connected disability. In any case, the examination findings in December 2020 clearly present a disability picture that the Veteran's limitations due to service-connected disabilities, both mental and physical combined, are such that it is reasonable to conclude that he would be precluded from the type of work he previously performed in the service (those leadership positions that involved skills of managing, instructing, planning, security analysis, etc.). However, it is it is less clear that there is sufficient evidence prior to December 2020 to support the TDIU claim. In the judgment of the Board, the first documentary evidence of potential unemployability is the December 2015 VA examiner's opinion that the Veteran was unable to perform desk work or manual labor due to pain [from his low back and lower extremity disabilities], which notably mirrored the Veteran's same reports in that regard. Yet, outpatient records subsequent to the VA examination report, while documenting certain low back limitations, show that the Veteran exercised (he said there was a coincidental worsening of low back pain while cutting back on exercise), experienced [only] intermittent left leg pain, undertook to carry a 40-pound child, required a PCP's sign-off to participate in (crossbow) hunting (which presumably requires some physically strenuous activity) which was obtained, and cleaned out his attic (also assumed to be a somewhat physically demanding activity). These activities do not, in the Board's view, support an ongoing condition suggestive of the functional impairments described by the December 2015 VA examiner, or a condition that would prevent gainful employment. The VA examiner on the October 15, 2019 examination also observed limitations in regard to the low back and lower extremities, and described them as wide-ranging (bending, lifting, twisting, sitting, standing, walking). Notwithstanding notations in November 2019 of left lumbosacral strain with acute low back pain after jumping three feet down from his pickup truck bed (a movement that would appear to be precluded by his disability restrictions suggested, if not an action undertaken imprudently considering his back condition), the Board accords the Veteran the benefit of the doubt in concluding that from the October 2019 VA examination date, he is shown to have been unemployable due to his service-connected disabilities. As earlier listed, his service-connected disabilities are extensive, but on the basis of the available evidence (mostly medical treatment records), it appears that the low back and lower extremity disabilities caused the greatest degree of functional impairment (at least up until December 2020). Considering the significant restrictions from the Veteran's service-connected disabilities, in concert with each other, and resolving reasonable doubt in his favor as required (see 38 C.F.R. § 4.3), the Board finds that the Veteran has been unable to engage in a substantially gainful employment due to the service-connected disabilities since October 15, 2019. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.