Citation Nr: 1752301	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-07 363A	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to June 18, 2015.


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from May 1990 to November 2010.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, awarded service connection for the Veteran's lumbar spine disability, but assigned a noncompensable evaluation for that disability, effective December 1, 2010-the date following his discharge from service. The Veteran timely appealed that decision.

The matter was previously before the Board in December 2015, when the Board decided the issue regarding an increased rating for his lumbar spine disability, and took jurisdiction over the claim for TDIU in order to comport with the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU claim for further development. The matter has been returned to the Board for further adjudication.


FINDINGS OF FACT

1. The Veteran met the schedular criteria for a TDIU on December 10, 2013.

2. The evidence of record favors a finding that the Veteran was prevented from securing and following substantially gainful employment as a result of his service-connected disabilities as of May 18, 2015, the date his service-connection award for bilateral lower radiculopathy was made effective.

3. Prior to May 18, 2015, the evidence is against a finding that the Veteran's service-connected disabilities prevented the Veteran from securing and following substantially gainful employment.


CONCLUSIONS OF LAW

1. The criteria for a TDIU for the period from May 18, 2015, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.16 (2017)
2. The criteria for a TDIU for the period prior to May 18, 2015, have not been met; referral for extraschedular consideration is not warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.16 (2017)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran filed a claim for a TDIU in March 2015. He contends that his service-connected disabilities prevent him from working.

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). The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability. Id. Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

If the percentage requirements of 38 C.F.R. § 4.16(a) are not met, however, then a TDIU may still be granted on an extraschedular basis in cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). However, the Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015).

Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016).

In this case, the Veteran became eligible for TDIU on a schedular basis under 38 C.F.R. § 4.16(a) effective December 10, 2013, at which time, his service-connected obstructive sleep apnea was rated 50 percent disabling, his carpel tunnel syndrome right wrist was rated 40 percent disabling, his lumbar spine degenerative arthritis was rated 10 percent disabling, his tinnitus was rated 10 percent disabling, his jaw condition was rated 10 percent disabling, his hemorrhoid disability was rated noncompensably disabling, and his verruca vulgaris was rated noncompensably disabling. His combined rating as of that date was 80 percent. 

The Veteran was subsequently awarded service connection for lower left extremity radiculopathy rated 20 percent disabling, lower right extremity radiculopathy rated 10 percent disabling effective May 18, 2015, and paranasal sinusitis rated 10 percent disabling effective August 22, 2015. The Veteran also received an increased rating for his lumbar spine degenerative arthritis to 20 percent disabling effective October 9, 2014, and to 40 percent disabling effective May 18, 2015. The Veteran's combined rating increased as of May 18, 2015, to 90 percent disabling.

The Veteran was also awarded service-connection for posttraumatic stress disorder rated 50 percent disabling, fibromyalgia rated 40 percent disabling, and alopecia scalp rated noncompensably disabling effective June 18, 2015. The Veteran's combined rating increased as of June 18, 2015, to 100 percent disabling. 

The Board notes that the Veteran has a high school education, and received some college education but never obtained a degree. He did obtain certificates in welding, A/C and refrigeration maintenance and aviation mechanics. His previous work experience (outside his military service) has been limited to a stocker, mechanic, and sale manager. He stopped working in May 2014. The Veteran has reported he left employment due to frustration the store was not run well.

Although the Veteran was eligible for a TDIU on a schedular basis as of December 10, 2013, the Veteran did not stop working until May 2014. Additionally, the evidence is against a finding that at any point prior to his award of service-connection for bilateral lower extremity radiculopathy and his increased rating for his lumbar spine degenerative arthritis (May 18, 2015), his service-connected disabilities in and of themselves prevented him from both physical and sedentary employment.

A VA Form 21-4192 was obtained from the Veteran's employer in July 2015, which shows the Veteran had been employed from December 2010 to May 2014 as an auto parts sales manager and worked an average of 40 hours per week. No concessions were made to the Veteran due to his disability. The employer reported that Veteran had earned $21,860.58 during the last 12 months of employment and that no leave had been taken in the 12 months preceding his last day due to his disability.

In this case, the Veteran's earnings in 2014 ($21,860.58) exceeded the poverty threshold for that year ($12,316.00). See United States Census Bureau Poverty Thresholds 2014. There is no indication that he was employed in a family-run business, sheltered workshop, or other protected environment suggestive of marginal employment prior to the date of unemployment in May 2014. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...".

The Veteran meets the schedular criteria for TDIU for the period from December 10, 2013, to May 9, 2014, due to this 80 percent combined disability rating; however, TDIU cannot be granted when the evidence establishes that a veteran was gainfully employed on a full time basis. Here, the preponderance of the record indicates that the Veteran remained gainfully employed until May 2014. In light of the evidence indicating that the Veteran had sustained, full-time employment for the appeal period until May 9, 2014, and in the absence of any evidence or argument suggesting that his earned annual income ever failed to exceed the poverty threshold or that his actual employment was otherwise marginal in nature, the Board finds that the preponderance of the evidence shows that the Veteran maintained substantially gainful employment until May 9, 2014. See 38 C.F.R. § 4.16; Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).

The evidence of record dated subsequent to May 9, 2014, to include VA examination reports, treatment records, and Social Security Administration (SSA) records, reflect that despite not working during this time, the Veteran did not become unable to secure and follow substantially gainful employment due to his service-connected disabilities until the effective date of the Veteran's award for service-connection for bilateral lower extremity radiculopathy and an increased rating for his lumbar spine degenerative arthritis. Resolving all doubt in the Veteran's favor, the Board will award TDIU as of the effective date of this award, May 18, 2015, but no earlier.

The Veteran was afforded a VA examination for his peripheral nerves in November 2014. The examiner noted a medical history of numbness and paresthesias of the right thumb and first two fingers. He had lost grip strength in the right hand and his hand would lock into a claw like position on occasion. The examiner noted right wrist use was difficult with the carpel tunnel symptoms.  In December 2014 VA treatment records, the Veteran noted that back pain and carpel tunnel syndrome pain prevented him from working in his field of employment, while his wife noted that he was unable to work due to concentration and memory problems.

Pertinently however, in January 2015, SSA records indicate the Veteran filed a claim for disability due to PTSD, depression, sleep apnea, anxiety, insomnia, right hand nerve disorder, low back problems, degenerative disc disease, narcolepsy, chronic pain, problems sitting, carpel tunnel syndrome, and traumatic brain injury. The SSA noted "... all potentially applicable Medical-Vocational Guidelines would direct a finding of 'not disabled' given the individual's age, education, and [residual functional capacity]." The SSA noted the Veteran would be limited to light unskilled work due to his impairment, and noted potential jobs such as mail clerk, order caller, or cashier.

In a March 2015 VA treatment record, the Veteran expressed a desire to return to work and a vocational rehabilitation consultation was ordered. In an April 2015 vocational rehabilitation consultation the Veteran reported he could no longer work as an engineer due to his disabilities, but would like to teach.

In May 2015, the Veteran was afforded VA examinations for his back and sleep apnea. The Veteran reported chronic worsened back condition with daily constant pain. Daily activities were difficult due to pain, such as dressing, bathing, standing to cook, or performing household chores. He was okay if seated in a supportive chair or lying down. He reported severe flares at least weekly, during which his tolerance for activity was minimal. The examiner noted the limitations of the back condition on employment as the need for a supportive chair, ergonomic set up, ability to stand up and move around as needed, and ability to lie down sometimes during the day to obtain pain relief for sedentary employment. The back limited physical work by prohibiting prolonged standing or walking, repeated lifting and carrying, heavy lifting and carrying, lifting from the ground, height work or ladder work due to risk of giving way and risk for falls, and stairs as tolerated and only with use of handrail.
With respect to the Veteran's obstructed sleep apnea, he reported residual hypersomnia. The examiner noted that sedentary work was impacted due to difficulty staying awake when seated for prolonged periods. Additionally, fatigue made concentration more difficult. Physical work was impacted as well because daily fatigue made it harder to perform physical activity due to tiredness, as well as fatigue causing difficulty with concentration.

In a June 2015 VA examination for mental health, the Veteran reported he looked for work since he moved to North Carolina in 2014, but believed he was not hired due to being a disabled veteran. The examiner indicated there were no current mental health symptoms that would currently interfere with physical or sedentary employment.

In May 2016, an examiner reviewed the Veteran's file and opined that due to the Veteran's functional limitations due to his service-connected disabilities, his ability to perform work requiring physical labor was impaired, and was more likely than not difficult for him to perform sedentary tasks that required prolonged sitting without frequent break periods due to fatigue and poor concentration. The examiner further stated that anything beyond that opinion regarding whether the Veteran's service-connected disabilities prevented employment would be mere speculation due to all the different occupations and work types in the world.

Although the SSA's determination is not binding on the Board, the medical evidence relied on by the SSA is relevant and the SSA's ultimate conclusion is persuasive under the circumstances of this case. The Veteran's service-connected disabilities did not prevent him from securing and following substantially gainful employment as of January 2015 because the Veteran was able to adjust to other work. However, by May 2015 the Veteran's back condition had worsened and he needed significant accommodations to perform sedentary and physical work. The new limitations of his worsening back, to include recognition of his service-connected lower extremity radiculopathy, coupled with his existing limitations of his other service-connected disabilities prevented him from securing or following substantially gainful employment.
Based on the above, the Board finds that although the Veteran became eligible for a TDIU award on a schedular basis in December 2013, unemployability due to service-connected disabilities was not factually ascertainable until his service-connection award for bilateral lower extremity radiculopathy and increased rating for his lumbar spine degenerative arthritis became effective, May 18, 2015. Prior to that date, the Veteran was gainfully employed or precluded from physical work due to his service-connected disabilities, but such disabilities in and of themselves did not preclude him from sedentary work given his education and work experience. Therefore, a TDIU prior to May 18, 2015, is denied, and referral of the matter for extraschedular consideration under the provisions of 4.16(b) prior to December 10, 2013, is not warranted. 

With respect to the appeal period from June 18, 2015, to present, the Board notes that the Veteran has a combined rating of 100 percent. The combined 100 percent rating would not moot the TDIU issue, if TDIU could be awarded for a single disability; Buie v. Shinseki, 24 Vet. App. 242 (2010); however, his claim has been based on the multiple service connected physical disabilities in addition to his service connected psychiatric disability. The evidence does not show that TDIU is warranted based on a single disability. 


ORDER

A TDIU is granted, effective May 18, 2015, but no earlier.



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs