Citation Nr: 1749060	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-24 321	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to a total disability rating based on individual unemployability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Trickey, Associate Counsel


INTRODUCTION

The Veteran served honorably in the U.S. Navy from June 1963 to September 1977.  The Veteran is the recipient of the Distinguished Flying Cross with one Gold Star.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran is service connected for a lumbar spine disability, evaluated at 40 percent disabling, effective November 30, 2005, a cervical spine disability, evaluated at 20 percent disabling, effective February 9, 2007; right and left shoulder disabilities, evaluated at 10 percent effective February 9, 2007, and at 20 percent from May 18, 2009; left lower extremity radiculopathy, evaluated at 10 percent effective January 18, 2006; and right lower extremity radiculopathy, evaluated at 10 percent effective January 22, 2009; with a combined disability rating of at least 70 percent, effective February 9, 2007.

2.  The Veteran's bilateral shoulder, bilateral lower extremity radiculopathy, cervical spine, and lumbar spine disabilities are as a result of multiple injuries incurred in action.

3.  The Veteran is precluded from securing or following a substantially gainful occupation as a result of service-connected disabilities.


CONCLUSION OF LAW

The criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

TDIU

A total rating for compensation purposes 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 service-connected disabilities, provided at least one disability 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

The Veteran is service connected for a lumbar spine disability, evaluated at 40 percent disabling, effective November 30, 2005, a cervical spine disability, evaluated at 20 percent disabling, effective February 9, 2007; right and left shoulder disabilities, evaluated at 10 percent effective February 9, 2007, and at 20 percent from May 18, 2009; left lower extremity radiculopathy, evaluated at 10 percent effective January 18, 2006; and right lower extremity radiculopathy, evaluated at 10 percent effective January 22, 2009; with a combined disability rating of at least 70 percent, effective February 9, 2007.  

VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992).  The dispositive question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 
In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved.  Ultimately, it is the responsibility of adjudicator to make the final determination regarding employability.  Geib v. Shinseki, 733 F.3d 1350, 1354   (Fed. Cir. 2013).

Importantly, the Board acknowledges that the Veteran's bilateral shoulder, bilateral lower extremity radiculopathy, cervical spine, and lumbar spine disabilities are as a result of multiple injuries incurred in action.  See Correspondence from Veteran dated October 1994; see also Memorandum from Navy Medicine Operational Training Center dated October 2014.  The Veteran meets the schedular percentage requirements for consideration of a total disability rating under 38 C.F.R. § 4.16(a).  

The Board must consider the Veteran's employment history, educational and vocational attainment in determining if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(b).  The Veteran's educational and occupational history reflects that he has a college degree and worked for single employer from 1978 to 1992, and then as a self-employed web designer until 2003.  The Veteran reports he has not had substantially gainful employment since 2003.   See VA Form 21-8940 Application for Increased Compensation Based on Unemployability dated February 2010.  

VA opinions regarding the Veteran's occupational impairment from his orthopedic disabilities found him capable of sedentary occupations, limited by an inability lift or carry heavy objects.  See VA examination opinion dated April 2017.  A prior VA examination in November 2011 found that the Veteran would be unable to perform even sedentary occupations as his right shoulder and cervical spine disabilities cause pain and interfere with his range of motion necessary to use a mouse at a desk.  

Additional VA examinations in April 2017 of the Veteran's bilateral shoulder disability indicate that the Veteran has difficulty lifting his arms, with a right shoulder limitation of motion in abduction, and external and internal rotation.  The April 2017 examination also indicated range of motion testing of the cervical spine showed objective evidence of pain on passive motion and non-weight bearing.  The Board also notes that the Veteran's residual functional capacity is also affected by his mild incomplete paralysis of his bilateral lower extremities.  See Rating decision codesheet dated May 2017.  

As noted above, the Board finds that there is sufficient evidence to find the Veteran is precluded from even sedentary employment and the severity of his service-connected orthopedic disabilities, in combination, likely render it impossible for the Veteran to secure and maintain substantially gainful employment.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (2013) (noting that responsibility of determining the combined impact of all service-connected disabilities rests with VA, not a medical examiner).  

The Board notes that VA examinations throughout the appellate period show moderate to severe impacts on the Veteran's activities of daily living that are associated with his lumbar and orthopedic disabilities.  See VA examination dated January 2007; see also VA examination dated August 2013.  

Given the Veteran's inability to lift or carry; remain in a seated position for periods of time without radicular symptoms of the lower extremities; limitation of motion of the right and left shoulders with difficulty lifting his arms above his head; and pain on passive and non-weight bearing of the cervical spine, the Board finds that the record is at least in relative equipoise as to whether he is precluded from substantial gainful activity as a result of service connected orthopedic disabilities.  

With resolution of doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017).



ORDER

A TDIU is granted, subject to the applicable laws and regulations governing the payment of monetary benefits.




____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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