Citation Nr: 0003646 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-10 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability due solely to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from August 1965 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran has the following service-connected disabilities: residuals of a right ankle injury, rated as 20 percent disabling; residuals of a left ankle injury, rated as 20 percent disabling; right patellofemoral syndrome, rated as 20 percent disabling; and left patellofemoral syndrome, rated as 20 percent disabling. The combined service-connected disability rating is 70 percent. 3. The veteran has not worked on a full-time basis since either October 1993 or October 1994. He had worked for the Post Office since 1982. He retired from the Post Office due to disability from a hip disorder that became problematic following a work-related incident, as well as a back disorder. Neither the back nor the hip disorder is service- connected. The September 1997 VA examiner states that the veteran's primary limiting factor concerning employability and daily activities was his reported inability to stand for more than a few minutes at a time. However, he is unable to determine whether the main culprit is the hips, knees, or ankles. Since retiring, the veteran has worked on a part- time basis as a coach and substitute teacher. He completed high school and about two years of college, or about 80 credits. He pursued a bachelor's degree in secondary education through VA's vocational rehabilitation but did not complete the program. The veteran has not applied for Social Security disability benefits. 4. The veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). See Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background A November 1996 rating decision shows that the RO had established the following service-connected disabilities and evaluations: residuals of a right ankle injury, rated as 20 percent disabling; residuals of a left ankle injury, rated as 20 percent disabling; right patellofemoral syndrome, rated as 20 percent disabling; and left patellofemoral syndrome, rated as 20 percent disabling. In June 1997, the veteran submitted a claim for entitlement to TDIU. He was currently unemployed. Although he related that he last worked on a full-time basis in October 1993 for the U.S. Post Office, he added that he worked approximately 15 hours a week for the last 12 months. From October 1993 to June 1997, the veteran worked as a substitute teacher and coach for about 10 hours a week. He did not leave his last job due to disability. He reported that he expected to receive disability retirement benefits. The veteran indicated that he completed high school and two years of college. He also participated in certified welder training in 1975 or 1976. After the veteran's alleged date of disability, he undertook a VA vocational rehabilitation program with a secondary education major. He related that he did not complete the program. The veteran explained that he had only been able to find part- time employment with the school for about 10 hours a week and only during the school months. An August 1997 statement from the Switzerland County School Corporation indicated that the veteran was employed as a substitute teacher and lay coach from 1983 to the present. He worked as a substitute on an as-needed basis for an estimated 12 hours per week. He last worked in May 1997. Due to disability, the veteran did not travel between school buildings and used handicapped parking. The veteran was afforded a VA general medical examination in September 1997. In addition to knee and ankle problems, he had a one-year history of diabetes mellitus, which he controlled with medication, osteoporosis in both hips that had worsened since falling while employed at the Post Office, and a herniated lumbar disc following a car accident. He was currently a part-time substitute teacher and a part-time coach. He last worked on a full-time basis in 1993. The veteran generally complained of daily pain in the hips, knees, ankles, and low back, which severely limited his activities. He coached cross-country runners from car or golf cart. When seated properly, he was able to sit in one position for several hours. He could only stand in one position for a few minutes before having to lean against something or sit down. He could walk on a flat surface approximately 50 yards before he had to stop. He could climb three to six steps before having to stop due to discomfort. The examiner commented that the veteran was obese and walked with a very slow gait, alternately favoring either lower extremity. He had notable discomfort in the lower extremities on undressing and getting up and down from the exam table. He was markedly out of breath on performing the maneuvers of the examination. X-rays of the hips revealed bilateral osteoarthritis. X-rays of the lumbar spine revealed osteoarthritis with bone spurs. The special orthopedic VA examination also performed in September 1997 focused on the service-connected knee and ankle disabilities. He related having pain, weakness, stiffness, and swelling in both ankles, with increased discomfort with activity, as well as increased fatigability bilaterally. Examination of the left ankle revealed mild soft tissue swelling and essentially absent dorsiflexion. Examination of the right ankle showed notable bony deformity of the lateral malleolus, essentially absent dorsiflexion, and mildly decreased plantar flexion. There was decreased strength against moderate resistance bilaterally. The veteran reported painful motion with all ankle use, though the examiner was not able to estimate resulting additional loss of motion. X-rays of the ankles showed changes consistent with previous fracture. With respect to the knees, the veteran reported symptoms including constant ache, intermittent weakness, stiffness, swelling, and increased fatigability. He denied any incoordination, locking, or giving way. He did not use knee braces. The veteran had undergone arthroscopic right cartilage repair. Anti- inflammatory medications did not relieve his symptoms. Examination of the knees weakened movement to moderate resistance. There was no instability, swelling, erythema, or tenderness to palpation. Right knee motion was from 0 to 120 degrees, with some discomfort at the end of flexion. Left knee motion was from 0 to 130 degrees. The examiner commented that it was unclear whether the respective amounts of decreased flexion were due to joint abnormality or to obesity. He added that loss of motion due to pain could not be estimated. X-rays of the knees showed degenerative arthritis in the right knee. The diagnosis was post- traumatic arthritic changes of the bilateral ankles with pain and osteoarthritis of the right knee. Although the examiner commented that the veteran's primary limiting factor appeared to be the inability to stand for more than two or three minutes at a time, he indicated that it was extremely difficult to ascertain whether the hips, knees, or ankles were the primary problem, as they all hurt in an interconnected way. The veteran testified at a personal hearing in August 1998. He had not been employed on a full-time basis since October 1994, when he was put on disability. He had been a postal employee since 1982. He sold stamps and sorted letters. The veteran explained that he was now unable to sit and stand as required at that position. He did not believe he had any skills from previous employment that would readily transfer to sedentary or light work. He did not think he would be able to perform sedentary or light work, even with the proper training, due to problems with prolonged sitting, standing, and walking. The veteran had approximately 80 hours of college credits. He had not applied for Social Security disability benefits. His doctors told him that his problems were going to get worse. He had a cane and used a motorized cart whenever possible in stores. The veteran was put on disability from the Post Office because of injuries sustained when a chair collapsed. The disability was established because of the hip and the back, which are not service- connected. The veteran explained that the Post Office doctor only let him work five hours a day for the last two and one- half years of his employment. He felt he could not do sedentary work because the aching in the knees and legs rendered him unable to concentrate for very long. In 1997, the veteran worked as a coach and a substitute teacher, earning a total of $4,622.00. He was unable to coach certain sports, like basketball, because he could not show the students how to play. He had a five-year substitute teacher's certificate. He had applied for VA vocational rehabilitation but was told that he would have to transfer to a school that was too far away. In a March 1999 statement, the veteran again asserted that he was unable to work due to service-connected bilateral knee and ankle disabilities. He conceded that the Post Office placed a lot of importance on the hip condition when it retired him based on disability. He explained that, although his knees and ankle problems were not severe enough to render him unemployable when he retired from the Post Office, they had now become much worse. A March 1996 vocational rehabilitation report was associated with the claims folder in April 1999. The veteran was seeking a bachelor's degree in secondary education. It was noted that the program prognosis was unsatisfactory. He had not complied with several program requirements. It was also noted that he had failed several classes. In addition, he had attended several schools and it was difficult to determine which credits could be transferred to his current program. Analysis Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities (Schedule) prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A total rating is also authorized for compensation purposes if the requirements of 38 C.F.R. § 4.16 are met. Id. Under 38 C.F.R. § 4.16(a), a total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, 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. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service- connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. Van Hoose, 4 Vet. App. at 363; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The veteran has the following service-connected disabilities: residuals of a right ankle injury, rated as 20 percent disabling; residuals of a left ankle injury, rated as 20 percent disabling; right patellofemoral syndrome, rated as 20 percent disabling; and left patellofemoral syndrome, rated as 20 percent disabling. The combined service-connected disability rating is 70 percent. See 38 C.F.R. §§ 4.25 (combined ratings table), 4.26 (application of bilateral factor). First, the Board finds that, as the service-connected disabilities all affect the lower extremities, they are considered one disability for purposes of satisfying the percentage criteria set forth in 38 C.F.R. § 4.16(a). The next question is whether the veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board finds that they do not. The veteran reports that he has not worked on a full- time basis since either October 1993 or October 1994 when he retired from the Post office, where he worked since 1982. The Board emphasizes that, by his own report, he retired due to disability from a hip disorder that became problematic following a work-related incident, as well as back problems. The back and hip disorders are not service-connected. In September 1997, a VA examiner stated that the veteran's primary limiting factor concerning employability and daily activities was his reported inability to stand for more than a few minutes at a time. However, he was unable to determine whether the main culprit was the hips, knees, or ankles. Since retiring, the veteran worked on a part-time basis as a coach and substitute teacher. He had completed high school and about two years of college, or about 80 credits. VA vocational rehabilitation records show that he pursued a bachelor's degree in secondary education but did not complete the program. The veteran has not applied for Social Security disability benefits. Considering the entire record, the Board does not find that the veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. ORDER Entitlement to TDIU is denied. JOHN R. PAGANO Acting Member, Board of Veterans' Appeals