Mr. Cue- How my SMC CUE succeeded

[Berta]

I am dealing with a repair man and cant fnd where you asked this question, this morning.

https://community.hadit.com/topic/47459-how-my-cue-succeeded/

As I mentioned, it was an obvious CUE in a 1998 award letter but my former POA said 1151s are different than regular claims and SMC issues. He was wrong.

A posthumous award for my husband was 100% P & T for SC PTSD ( up from 30% in his lifetime)

The additional 1151 disability (stroke)was rated at 80% in the award letter. 1151 means "as if service connected" for VA rating purposes.

100% plus 60 % or more independent disability equal SMC S.

I also provided evidence that he was Housebound.

Philadelphia Nehmer VARO awarded under both theories but paid correctly only  one SMC S as an accrued award.

The CUE was that the VARO had failed to consider SMC,in spite of significant information on the rating sheet that awarded it.

That is where most CUEs are found- on rating sheets and also when probative evidence that VA has received, is either not listed on the Evidence list or, it is listed as evidence, but the VA fails to consider it. Violation of 38 CFR 4.6.

 

 

[Mr cue]

Yes this why I want to see your cue for smc.

I also had all the evidence back in 2000 when I did my cue claim.

And it was found that the buffalo ny regional office never cretifed my appeal to the board.

It remain pending in appeal status for 8 year.

Well I got the 8 years of tdiu retro.

But they never inferred smc back than.

Fast-forward I apply for smc benfits 2018 18 years later. Got granted smc s and l.

But they are fighting me hard to address anytime period before I apply.

I fought them all the way to the court who set a side the effective dates and remand it to address the earlier time period.

I still can't get them to address it.

I was saving the cue but I am at a point.

I will be using some of the law you used to show smc benfits we're never inferred back than.

And my effective dates for the granted smc is now 1993 or 2001.

They will not win this one thanks again

[Berta]

This was my evidence:

1.The 1998 rating sheet.

(SMC is an "inferred issue" whenever the evidence on a rating sheet warrants it to be considered)

2. Copy of the M21-1MR excerpt that stated that above.

3. a brief copy of how NVLSP in the VBM explained the above regulation.

We both have dealt with Buffalo RO and they held onto my SMC CUE claim, without BVA transfer- for 8 years too.

They even tried to make up a regulation to discourage me. I filed this as the widow of a veteran, fully entitled to accrued benefits.

They stated that since the veteran did not seek SMC in his lifetime, he was not eligible for it.

That was a crock of crap.When I asked for the specific regulation on that, of course they could not produce it.

My husband was only 30% SC when he died with two claims pending- higher rating for PTSD ( awarded almost 3 years after his death), and Section 1151 claim, awarded in the 1998 decision I Cued- over 3 years after his death.

Mr Cue. I need to mention again something to consider.

When I filed FTCA for  his wrongful death in 1995, I could find NO IMO doctor at all, and at least 20 lawyers here in NY told me I could never succeed.The internet was highly limited in those days.

I am inspired by adversity- that helpd me graduate with Honors from AMU- their first civilian graduate. (and first Chapter 35 student)My first Semester there was full of negativity- because my USMC professor was offended by a female civilian enrolled in a war college,

until he got my first Thesis. I never got less then an A from him for the next 4 years in the tactical warfare program he controlled.

Adversity also  inpired me to be able to prepare a FTCA case with no IMO and no lawyer, and I succeeded in settling with the VA . It was the easiest dealings I ever had with VA at that point. .. tht is when I learned of the probative evidence the Buffalo VARO had hidden from the OGC.VA OGC is tough but so am I.

So why, when I reopened my claim for direct SC death due to AO DMII ( never diagnosed or treated by VA) was I willing  to spend 4 tthouand bucks for 2 IMOs, and even orderd an additional  one at about $1,400 due to a remand ( but that forensic firm refunded half of my money because the BVA awarded anyhow before the IMO was done ( I had knocked down a lousy VA C & P opinion BVA ordered myself)----

because I knew the Buffalo adjudicating clowns would again refuse to even read my IMos and, I was in the Military University at the same time, so I was not going to allow them (Buffao VARO)to affect my grades with their inability and unwillingness to readmy evidencem and to continue  to argue over established VA case law and regulations. Even with proving a major DTA error,= they made,  the BVA agreed but said I had mitigated the damages with my evidence.

I know you are not interested in getting an IMO. That's OK because it might not even help your situation-and  that is the chance we all take.

But the posthumous C & P exams tthey gave my husband were absolutely ridiculous and some other widow might have bought what they were selling,

but Not me.

This is the hurdle for a valid CUE under SMC:

(SMC is an "inferred issue" whenever the evidence on a rating sheet warrants it to be considered)

1. The rating sheet that warrants the CUE

2. Copy of the M21-1MR excerpt that stated that above.

My SMC CUE was Finally set for BVA transfer and I knew  the BVA would award but a miracle happened- AO IHD regs, and since that CUE had been pending for 8 years, I asked tthe Nehmer Phila VARO to decide it properly  it because it would affect my AO IHD claim and was filed long before the SMC CUE was filed. They awarded it.

I think readers here get tired of my stories about the way the VA can treat widows.

They hope we will  get lousy vet reps (mine didnt have a clue)and that we have no idea as to how the regulations can work for us.

Beverly Nehmer was represented by NVLSP and her case has positively affected THOUSANDS of AO vets and widows for decades -

and it Still does!!!!!! 

 

 

 

 

Edited January 4, 2022 by Berta
carpal tunnel pelling

[broncovet]

You posted:

 

Quote

I also had all the evidence back in 2000 when I did my cue claim.

It does not matter if YOU had the evidence, it matters if the VA had it, and, if the evidence was sufficient to establish you met the criteria for SMC earlier.  

YOu seem confident "you" had the evidence, but a judge may well interpret this evidence different than you do.  

This is where the IMO comes in..it can support your position, while appealing over and over rarely does.  

You need to understand the CAVC is generally NOT a trier of fact.  The Board makes "factual determinations" and often so states them in board decisions.  

The standard of review for factual determinations made by the board is "arbritrary and capricious".  At the CAVC, you dont get the BOD.  

The burden is on you to prove the board's factual finding was arbritrary and capricious.  

Many/most of the board's appeals by attorneys are based on 

"An inadequate or no reasons and bases" for their decision, because the board is required to give reasons as to why they arrived at the applicable conclusion.  

You can argue the board "did not give an adequate reasons and bases" as to why your (SMC claim) was not inferred, and the date your doctor first stated you had (the applicable symptoms).   

Then, when the CAVC gives a remand for reasons and bases, you submit an IMO to demonstrate to the Board, indeed, you met the criteria for SMC at an earlier date.  

     You dont have to do this; however, its my opinion that the above 2 paragraphs are your best shot at winning benefits.  Of course, I have not read your file, so I have no idea what your doctor stated, and when he said it.  

     Maybe it IS in your file, but, a rating, as well as an award for SMC is a "judgement call".  If judge A makes that judgement call, judge b rarely overturns it unless its "arbritrary and capricous", or, the first judge did not give an adequate reasons and bases as to why your SMC was NOT inferred, and why you were not awarded benefits consistent with your doctors opinions of your conditions.  

[Mr cue]

Broncovet 

Have you ever fought a case at the cavc pro se.

I do think so.

So plz don't try and tell me how to fight at the cavc unless you have done it.

I have done it two times .

And each time my cases were remand.

I even got the court to reverse a issue pro se.

I understand you have nothing better to offer to my posts than you need a imo.

I get that your advice for everything 

So I am done try to get you to  understand that you don't need a imo to get smc benfits.

I am glad you won your case with a imo and a lawyer

I have won cases without one and without a lawyer.

So I don't think we will ever understand each other.

But I do like your post because you do put some law.

I have posted the extra schedulers tdiu rating decision.

Which I feel is all the evidence I need take a look at it and than post 

 

 

[Mr cue]

Berta yes I remember your fight well we were both fighting the buffalo ny regional office.

See like you I understand the va games that why I didn't do the cue First. I apply for smc benfits.

They granted them. Now that they understand they mess up they will not address a earlier time period

Even after I had the court remand it to be addressed.

But you no like I do if it's a big retro cases they are going to make you fight and hope you miss a deadline or don't appeal in time.

Well  like you my claim remaining in appeal status for 8 years.

So if they address early time period I believe it will go back to 1993.

That alot of retro for a va error.

I will post the extra schedulers tdiu rating decision  in this thread  that I believe is all the evidence I need.

 

[Mr cue]

 

 

 

Citation Nr: 1212024	
Decision Date: 04/02/12    Archive Date: 04/11/12

DOCKET NO.  09-19 043	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Buffalo, New York


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to August 16, 2001.


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

Appellant (the Veteran) had active service from October 1, 1993 to December 13, 1993.  

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In December 2009, the Board remanded this appeal for additional evidentiary development.  In May 2011, the Board again remanded the claim for corrective action regarding the previous remand.  The appeal has since been returned to the Board for further appellate action.

In addition to remanding the claim listed above, in December 2009, the Board also granted service connection for a left elbow disability, granted an increased initial rating of 20 percent, prior to August 16, 2001, for the Veteran's service-connected cervical spine disability, and denied a disability rating in excess of 60 percent for a cervical spine disability since August 16, 2001.  In January 2010, the Veteran filed a motion for reconsideration of the Board's denial of an increased initial rating higher than 20 percent, prior to August 16, 2001.  In September 2010, the Board denied the motion.  Thus, there are no pending appeals regarding increased ratings for the cervical spine disability.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  The evidence for and against whether, from December 14, 1993 to August 16, 2001, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation is in equipoise.  



CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, from December 14, 1993 to August 16, 2001, the criteria for TDIU were met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011).  

As the Board is granting TDIU from December 14, 1993 to August 16, 2001, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

TDIU - Law and Regulations

It is the established policy of VA 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.  A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15 (2011).

Substantially gainful employment is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider.  Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2011).

Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321.

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (the CAVC) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the CAVC indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment.  The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA.  38 U.S.C.A. § 7104(c) (West 2002).  In a pertinent precedent decision, the VA General Counsel interpreted the controlling VA regulations as generally providing 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.  The VA General Counsel also interpreted "unemployability" as synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.

Analysis of Entitlement to TDIU

During the period prior to August 16, 2001, two service-connected disabilities must be considered - cervical spondylosis with chronic muscle strain of the left neck, rated at 20 percent disabling, effective December 14, 1993, and residuals of a left elbow fracture with paresthesias, rated at 20 percent disabling, effective December 14, 1993.  Therefore, with respect to this period, the Veteran does not meet the schedular criteria for consideration of TDIU.  See 38 C.F.R. § 4.16(a) (2001-2011).  A TDIU is in effect since August 16, 2001, and this is based in part on the increase in the disability rating for the Veteran's cervical spine disability from 20 percent to 60 percent, effective that date.  The Board has specifically found that a rating in excess of 20 percent for the cervical spine disability is not warranted prior to August 16, 2001 on a schedular or extraschedular basis.  Therefore, the Board's decision here hinges on a finding that, irrespective of the above factual background, the combined effect of the Veteran's service-connected disabilities renders him unable to secure and follow a substantially gainful occupation.  

The current effective date for TDIU of August 16, 2001 is not based on a change in his physical condition on that date, but is based on the date the claim for TDIU was received at the RO; however, the Board found in its July 2009 decision that the claim for TDIU actually arose from the Veteran's January 11, 1994 original claim for compensation, as a component of the appealed initial rating for a left neck disability assigned in the resulting June 1994 rating decision.  In this context, the current effective date of August 16, 2001 has little to support it.  The Board's decision must be based primarily on the impairment resulting from service-connected disabilities before August 16, 2001, and whether such impairment precluded a substantially gainful occupation.  For reasons that will next be addressed, the Board finds that the evidence for and against such a finding is in equipoise.  

The Board is most persuaded by what appears to be a consistent level of overall occupational impairment over the entire period since service.  While the particular factors such as limitation of motion and attacks of intervertebral disc syndrome may have changed over this period, the evidence indicates that the effect on occupational impairment has remained largely the same.  A VA examination in April 1994 reveals that the Veteran was not working because of his injured neck and left arm at that time.  In that examination, and in a February 1997 examination, the Veteran reported decreased sensation and pain associated with most activities, and especially attempting to lift.  In a November 2000 physical therapy initial evaluation, it was noted that the onset of chronic pain was five to six years prior.  A June 2001 report indicates a five-year history of increased pain and neck stiffness.  

In May 2003, the Veteran's girlfriend stated that she had been in a relationship with the Veteran for 13 years.  She noted that, for this period, the Veteran could not play with his son or daughter because of his neck, that he was not able to hold his son because of the lack of feeling in his hand, and that he was not able to contribute to household chores such as mowing the lawn, taking out the garbage or even minor repairs.  Thus, regardless of the specific findings pertinent to the rating schedule that were present during this period, the overall effect of the disabilities on the Veteran's employment appears to be roughly the same as it was and is after August 16, 2001.  

Regarding the medical opinion evidence, this evidence is generally favorable to a finding that the Veteran's service-connected disabilities precluded a substantially gainful occupation from December 14, 1993 (the first day after service separation) to August 16, 2001.  A July 2003 VA examination includes the opinion that the Veteran had been unemployed since service separation.  The examiner felt that the likelihood of his returning to work was slim.  While this opinion is after August 2001, it deals with the entire period since service separation.  

In a June 2010 addendum to a January 2010 VA examination report, the VA examiner specifically commented on the Veteran's employability from April 1994 through August 2001.  The examiner opined that the Veteran could only stand one hour at a time.  He could only walk with a neck brace up to 45 minutes.  Without a brace, he could walk 20 minutes.  He had severe restrictions with any bending, lifting, and twisting, as well as reaching and grabbing with his left hand.  The examiner noted that the Veteran's skill set was that of a tanker, and that he could obtain employment with the above restrictions.  

There are other opinions indicating that only sedentary work would be appropriate for the Veteran, notably, a November 2003 private opinion.  A January 1995 vocational rehabilitation counseling summary notes that the Veteran had an impairment of employability.  It was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs he would qualify for.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The counselor noted that the Veteran has not overcome the effects of the impairment of his employability and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

A January 2001 counseling record for VA vocational rehabilitation notes that the Veteran has some employment impairments including that physical labor is difficult, overhead lifting and heavy lifting are precluded.  According to the January 2001 examiner, the Veteran could not do entry-level manual jobs.  The examiner recommended that the Veteran become trained to be a computer technician.  A narrative summary includes the assessment that the Veteran's service-connected neck condition limits him from doing any overhead or heavy lifting and that he lacks suitable skills to find employment that is not physically demanding.  The Veteran ultimately withdrew from vocational rehabilitation due to complaints of headaches, which he attributed to his neck.  

A March 2011 VA social and industrial survey notes that the Veteran's service-connected neck condition and non service-connected disabilities place him at a competitive disadvantage in obtaining employment when competing with jobs for the nondisabled, as he is not able to do any jobs that require excessive physical demands.  The examiner noted the findings in the vocational rehabilitation file, as well as the factors such as the Veteran's substance abuse.  The examiner provided the opinion that, with the Veteran's limited education and work experience, the type of work he could do would be primarily physical; this would be compromised by his physical disabilities, including service-connected disabilities.  The examiner continued that it is clear that the Veteran's service-connected disabilities disabilities had a notable impact on his ability to obtain and maintain substantially gainful employment prior to August 2001. 

The Board remanded the claim for an addendum opinion in light of the March 2011 examiner's apparent consideration of other physical disabilities in addition to service-connected disabilities in formulating the opinion as to unemployability.  An August 2011 addendum to the social industrial survey reveals that, in the reviewing physician's opinion, the Veteran's cervical spine condition from April 1994 to August 16,2001 caused the following limitations:  the Veteran could only stand one hour at a time; he could only walk with a neck brace for up to 45 minutes and without a brace he could walk 20 minutes; he had severe restrictions with any bending, lifting, or twisting; and the Veteran's elbow injury also restricted physical labor that required repetitive use of the left upper extremity.  In the physician's opinion, these limitations due to service-connected disabilities caused the Veteran to be unemployable in both physical and sedentary work during this time period.  The opinion was that the Veteran was not employable in any type of labor during this time period due to his service-connected disabilities.

The RO referred the case to the Director of the VA Compensation Service (Director) for extraschedular consideration decision in December 2011.  In a January 2012 opinion, the Director noted that, from April 1994 to August 16, 2001, the sole service-connected disability was cervical spondylosis with chronic muscle strain of the left neck, evaluated at 20 percent.  The Director found that physical examinations prior to August 16, 2001 do not support the contention that the Veteran's service-connected cervical spine disability was so exceptional or unusual, as to render the use of the regular rating schedule standards impractical.  The Director found that there are no medical statements or records indicating that the Veteran could not perform in any sort of occupational environment.  The Director also noted that May 18, 2001 was the first time employment functioning was mentioned in terms of the Veteran's neck disability, and this appears to be verbal history from the Veteran, not a professional medical opinion.  The Director noted that the Veteran stopped attending vocational rehabilitation due to headaches, which he claimed were due to the neck, but no link has been provided, and he is not service connected for a headache condition.  The Director acknowledged the recent VA opinion that the Veteran was unemployable due to his cervical spine disability prior to August 2001.  While this opinion was taken into consideration, the Director found that the objective evidence does not support the examiner's finding.  The Director concluded that, while available evidence demonstrates that the Veteran's cervical spine disability would have affected his ability to work prior to August 2001, evidence does not show it would have precluded all types of employment, such as sedentary employment.  

The Board notes that the Director only considered the Veteran's cervical spine disability as service connected during the period in question.  While this was technically true at the time, service connection was subsequently granted for residuals of a left elbow fracture with a 20 percent rating assigned effective December 14, 1993.  The service-connected left elbow disability must also be considered in determining TDIU entitlement, but apparently was not considered by the Director.  The Board also notes that the Director did not explain why the objective evidence does not support the examiner's finding.  In addition, the Director appears to have found that the evidence must show that the Veteran's service-connected disabilities would have precluded all types of employment, such as sedentary employment, in order to warrant TDIU on an extraschedular basis.  Such criteria appear stricter than what is provided in VA regulations.  

The Board finds most persuasive the fact that, as determined by the Veteran's vocational rehabilitation counselors, the Veteran 's service-connected neck disability limits him from doing any overhead or heavy lifting, coupled with the fact that he lacks suitable skills to find employment that is not physically demanding.  Indeed, regarding sedentary employment, it was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs for which he would qualify.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The VA vocational rehabilitation counselor noted that the Veteran has not overcome the effects of the impairment of his employability, and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

In Moore, 1 Vet. App. at 359, the CAVC discussed the meaning of "substantially gainful employment."  The CAVC noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Here, it is uncontested that the Veteran's service-connected disabilities would preclude any form of employment that is more than sedentary in nature.  Moreover, as a result of his inability to complete his education and his limited vocational experience, the Board finds that the types of sedentary occupations available to the Veteran would be quite limited.  The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant.  On this question, the evidence in this case is at least in relative equipoise.

An additional factor considered by the Board relates to medication taken by the Veteran to treat his service-connected disabilities.  In a May 2003 RO hearing, the Veteran testified that he took pain medications and muscle relaxers for his service-connected disabilities.  A July 2003 VA examination reveals that he had been taking codeine for pain.  A June 2011 VA social and industrial survey shows that he was taking the muscle relaxant Cyclobenzaprine.  The effect of the Veteran's long-term use of pain medications and muscle relaxers to treat his service-connected disabilities cannot be ignored when considering his overall functional impairment due to service-connected disability.  See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability).

In sum, given the severity of the orthopedic disabilities affecting neck, cervical spine, and left upper extremity, the Board finds that the evidence for and against whether substantially gainful employment is realistically within the Veteran's 

physical and mental capabilities is in equipoise.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from performing substantially gainful employment.  38 C.F.R. § 5107(b).  Therefore, TDIU is warranted from December 14, 1993 to August 16, 2001.


ORDER

A TDIU from December 14, 1993 to August 16, 2001 is granted.




____________________________________________
J. Parker
Veterans Law Judge, Board of V