Citation Nr: 1761167
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 11-08 751A ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
Entitlement to a total disability rating based on individual unemployability due to service-connected disorders.
(The issues of entitlement to service connection for an acquired psychiatric disorder, a kidney disorder, a neck disability, a pancreas disorder, and a heart disorder were addressed in a separate December 2017 decision and remand.)
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
M. Carsten, Counsel
The Veteran served on active duty from September 1975 to June 1989.
This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
The Veteran testified in June 2012 before the undersigned. VA was unable to produce a transcript of that hearing. The Veteran was informed of this fact, and on multiple occasions waived his right to a new hearing. 38 C.F.R. § 20.717 (2017).
In June 2014, June 2015, and March 2017, the listed issue was remanded for additional development.
This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed.
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).
FINDING OF FACT
The evidence is at least in equipoise as to whether the Veteran’s service-connected disorders (varicose veins, chronic low back syndrome, bilateral lower extremity radiculopathy, hypertension, and chronic kidney disease) alone are of sufficient severity so as to preclude all forms of substantially gainful employment.
CONCLUSION OF LAW
Resolving reasonable doubt in the Veteran’s favor, the criteria for a total disability rating based on individual unemployability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).
In June 2014, the Board inferred the issue of entitlement to a total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability 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).
As of August 6, 2009, the Veteran was service-connected for bilateral varicose veins (50 percent); chronic low back syndrome (20 percent); left lower extremity lumbar radiculopathy (20 percent); right lower extremity lumbar radiculopathy (20 percent); and hypertension (10 percent). Effective March 2, 2015, service connection was established for chronic kidney disease (80 percent from March 2, 2015 and 100 percent from January 15, 2016). The combined rating was 80 percent from August 6, 2009 and 100 percent from March 2, 2015. The Veteran meets the schedular requirements for individual unemployability.
Special monthly compensation at the housebound rate was awarded from January 15, 2016 and the individual unemployability issue is considered moot as of that date. See Bradley v. Peake, 22 Vet. App. 280 (2008).
In considering entitlement to a total disability rating based on individual unemployability, the pertinent inquiry is whether service-connected disabilities individually or in combination are of sufficient severity to produce unemployability – not whether a veteran is unemployable solely due to his service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).
In his November 2009 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he reported that he last worked full-time in 1989. Schooling was reported as three years of high school and training in the food service industry during active duty. In his April 2011 VA Form 21-8940, the Veteran reported one year of college as well as training in culinary arts during 2010 that was not completed. He stated that he was not able to work due to problems with prolonged standing, sitting, and lifting.
A review of the Veteran’s VA vocational rehabilitation folder shows that in November 2009, he underwent evaluation and VA determined it was not reasonable to expect him to be able to train or get a suitable job at that time. He had not obtained or maintained employment in over 20 years due to alcohol/drug abuse and prison. Additionally, due to the severity of his medical conditions, he would have difficulty with employment that required prolonged standing and he was not open to alternative training in a more sedentary career field.
Information in the claims folder shows the Veteran was incarcerated from approximately June 2012 to July 2014.
The Veteran underwent a VA kidney examination in July 2015 and the examiner stated the condition would impact his ability to work in that it causes easy fatigability. On VA examinations in August 2015, the examiner stated that the Veteran’s hypertension and varicose veins would not impact his ability to work. His back condition and associated radiculopathy would impact his ability in that he could not lift more than 10 pounds and could not bend forward to pick up objects on the floor.
In an August 2015 statement, the appellant’s VA primary care provider, Dr. E.C. stated the Veteran had a very complex medical record, to include stage five kidney disease and uncontrolled diabetes. He was in need of a kidney transplant. She further stated that the claimant had chronic pain from cervical and lumbar stenosis and was getting ready for another varicose veins surgery on the left leg. Due to his multiple medical problems and multiple doctor appointments, the provider opined it was unreasonable to think that he would be able to perform any occupation for a full 8 hour work day. He would miss work several times a week and was unable to sit, stand, or walk for any amount of time greater than an hour. She requested that VA consider increasing his disability payments due to the inability to perform any type of employment at that time.
A September 2015 statement from Dr. E.C. stated that the Veteran recently had surgery for his varicose veins and was using a cane more. Additionally, he had a flare of gout requiring steroids and ultimately ended up in intensive care with heart arrhythmias. She indicated continued total disability due to the severity of his medical conditions and she did not anticipate recovery to the point he could perform well at any occupation.
In a December 2015 VA addendum, the examiner stated that the Veteran had called multiple times to get vascular surgery to type a letter stating he cannot be employed due to service-connected conditions. The examiner stated that in theory, his recent left leg surgery would cause a decrease in his service connection as the procedure was intended to treat the problem.
In a May 2016 statement, Dr. E.C. stated the following:
I believe that the chronic pain from sciatic, cervical and lumbar nerve pains/weakness, mobility limitations and peripheral vascular disease (varicose veins) have caused his inability to work. The addition of the end stage renal disease requiring dialysis and adding to the frequent doctor appointments would additionally interfere with him being present or tolerating a full time working environment.
The overall evidence shows the Veteran is unable to obtain or maintain substantially gainful employment. The Veteran has significant nonservice-connected disabilities, to include diabetes and substance abuse, and the question is whether his service-connected disabilities alone are of sufficient severity so as to preclude employment.
As discussed, the Veteran’s incarceration and nonservice connected drug and alcohol problems played a large part in his inability to obtain or maintain employment throughout the appeal period. Standing alone, the Veteran’s varicose veins, lumbar spine disorder with lower extremity radiculopathy, and hypertension do not appear to have a significant impact on employment, particularly that of a sedentary nature. When considering the impact of chronic kidney disease, however, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a total disability rating based on individual unemployability are met. 38 C.F.R. §§ 3.102, 4.16(a).
Entitlement to a total disability rating based on individual unemployability due to service-connected disorders is granted, subject to the laws and regulations governing the award of monetary benefits.
DEREK R. BROWN
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs