Citation Nr: 18142214 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 07-06 286 DATE: October 15, 2018 ORDER From August 17, 2010 forward, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU prior to August 17, 2010 is remanded. FINDING OF FACT From August 17, 2010, forward, the Veteran’s service-connected disabilities rendered her unable to obtain and maintain substantially gainful employment consistent with her educational and occupational background. CONCLUSIONS OF LAW From August 17, 2010, forward, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1992 to April 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2008, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). In October 2016, the Veteran verified that she did not wish to have another Board hearing, though the VLJ who conducted the June 2008 hearing is no longer employed by the Board. This matter initially came before the Board in December 2008, at which time the Board remanded claims for increased rating for the cervical and lumbar spines, bilateral pes planus, and bilateral hallux valgus. In March 2010, the Board denied increased rating claims relating to the feet and remanded the spine claims. In April 2011, the Board denied the claims for an increased rating for the lumbar and cervical spines. Also, the Board found that a TDIU claim was part of the increased rating claims then on appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU claim for additional development. The claim was remanded by the Board for further development in May 2013, December 2016, and June 2017. Entitlement to a TDIU from August 17, 2010, forward. It is the established policy of VA that all veterans who are unable to secure and maintain 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. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. The Veteran in this case met the schedular percentage requirements for a TDIU, as of August 17, 2010, as she was in receipt of service connection for left upper extremity radiculopathy, rated 30 percent disabling from August 17, 2010; bilateral pes planus, rated 0 percent disabling from April 7, 2001 to April 6, 2006, 10 percent disabling from April 7, 2006 to December 11, 2016, and 30 percent disabling thereafter; a low back disability, rated 10 percent disabling from April 7, 2001 to April 6, 2006, and 30 percent thereafter; moderate diffuse thoracic spondylosis, rated 10 percent disabling from April 7, 2001; left lower extremity radiculopathy, rated 10 percent disabling from August 17, 2010; right lower extremity radiculopathy, rated 10 percent disabling from August 17, 2010; a cervical spine disability, rated 10 percent disabling from April 7, 2001 to September 23, 2010, 20 percent disabling from September 24, 2010 to June 27, 2018, and 10 percent disabling thereafter; and bilateral hallux valgus, rated 0 percent disabling from April 7, 2001. The remaining question is whether these service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that she is incapable “of performing the physical and mental acts required” to be employed. Id. at 363. Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA’s duty to assist “does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities.” See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner’s opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). There is no regulatory definition of “substantially gainful employment.” 38 C.F.R. § 4.16(a) provides guidance in that it states: “Marginal employment shall not be considered gainful employment.” It also says definitively that marginal employment exists 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. 38 C.F.R. § 4.16(a). There is not always sufficient evidence in the claims folder to determine earned annual income. However, in case there is appropriate evidence of earned annual income, the most recent poverty threshold may be found at: http://www.census.gov/hhes/www/poverty/data/threshld/ (last visited July 18, 2018). Even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. One example given is employment in a protected environment like a family business or a sheltered workshop. 38 C.F.R. § 4.16 (a). As an initial matter, the Veteran stopped working full-time on January 27, 2010. See July 2011 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran’s DD-214 indicates that she served on active duty for almost nine years. Her military occupational specialty was finance technician. An August 2010 United States Department of Labor Work Capacity Evaluation for Musculoskeletal Conditions, completed by a physician, indicated that the Veteran could sit, walk, stand, and reach for no more than two hours. She could operate a motor vehicle for less than four hours. Her ability to perform repetitive wrist and elbow motions was limited to four hours. Her ability to lift, push, and pull was limited to 10 pounds and less than one hour. Her ability to squat and kneel was limited to less than one hour. In October 2010, the Veteran stated that she had constant pain in her neck, shoulders, head, back and legs. She experienced a burning sensation in her legs that prevented a good night’s rest and prevented daily activities. She stated that her daily back aches and leg pains made it virtually impossible for her to do anything. A November 2010 VA examination report indicated that the Veteran reported that she stopped working due to low back and shoulder pain. Her functional limits included an inability to walk more than five minutes, an inability to run at all, an inability to stand more than two minutes, an inability to sit for more than two hours, and an inability to lift more than five to 10 pounds. She was also unable to engage in sports or play with her children. In July 2011, the Veteran submitted VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. She indicated that her service-connected disabilities affected full-time employment in 2006, and she last worked full-time in January 2010. Her last employment was as a finance specialist for the Bureau of Prisons. She was receiving workers compensation benefits, but indicated that such benefits were being drastically reduced. In January 2012, a VA examiner stated that the Veteran must be able to change positions every 30 minutes to one hour and as needed. She could only stand for five minutes before a rest period was needed. She was unable to push, pull, carry, crawl, stoop, bend, climb, or lift more than five pounds due to her service-connected disabilities. Sitting for more than an hour or walking for more than 100 feet increased her neck pain. She reported being unable to run. In a March 2012 addendum opinion, the January 2012 VA examiner opined that the Veteran was unable to secure and maintain substantially gainful employment in a physical capacity due to physical limitations. The VA examiner further opined that the Veteran might be able to perform in a sedentary employment setting if she was able to change positions every 30 minutes to one hour and as needed. In August 2013, a VA examiner opined that the Veteran’s current functional status due to her service-connected disabilities permitted sedentary employment, but physical employment. Specifically, her back and neck pain impaired her ability to safely perform physical work. A January 2017 VA examination report indicated that the Veteran reported being unable to walk more than 2/10 of a mile or stand more than three to five minutes due to her service-connected low back disability. She was unable to lift more than five pounds overhead due to her service-connected cervical spine disability. A June 2018 VA examination report indicated that the Veteran reported experiencing constant back pain and that she could not walk long distances or stand for long durations. She reported that her low back pain with accompanying bilateral lower extremity radiculopathy made working very difficult and she stopped working in 2010. She had a bachelor’s degree in Business administration. She worked had worked for the government in finance positions after service, until 2010. These were described as “desk jobs.” The VA examiner opined that the Veteran’s current back condition rendered her unable to seek and maintain a substantially gainful physical type employment. However, the VA examiner opined that the Veteran should be able to seek and maintain a substantially gainful sedentary type of employment. The VA examiner noted that the Veteran’s current thoracolumbar range of motion was moderately reduced, but without pain. No functional loss was observed during the examination. She could do repetitive motions without further loss of function or range of motion. She was not having a flare-up and she had no guarding. She was negative for bilateral lower extremity radiculopathy during the examination and this was confirmed by EMG testing. The VA examiner noted the Veteran’s work history and college degree. After a review of all the evidence of record, lay and medical, the Board finds that the Veteran has been unable to secure or maintain substantially gainful employment due to her service-connected disabilities for since August 17, 2010. The November 2010, January 2012, January 2017, and June 2018 VA examination reports, as well as the August 2010 Department of Labor Work Capacity Evaluation, reflect that the Veteran’s ability to sit, stand, and walk for prolonged periods is restricted by her service-connected disabilities. While the March 2012 addendum medical opinion, August 2013 VA examiner, and June 2018 VA examiner indicated that the Veteran was able to maintain sedentary, but not physical employment, these opinions are contradicted by the evidence reflecting that the Veteran was not able to sit or stand for extended periods, as is required for sedentary employment. The Board notes that March 2012 addendum opinion indicated that the Veteran’s ability to perform in a sedentary employment setting would be conditional on her ability to change positions every 30 minutes to one hour and as needed. This condition on sedentary employment would make it unlikely that the Veteran would be able to obtain and maintain substantially gainful employment. In addition, the Board finds the fact that the Veteran was unable to maintain her previous sedentary employment to be highly probative evidence that she has been unable to maintain sedentary employment since at least August 17, 2010, the date she met the schedular requirements for a TDIU. Given the significant impact of her service-connected disabilities on the Veteran’s ability to work and perform routine tasks that would likely be required for employment, the weight of the evidence supports a finding that her service-connected disabilities precluded her from obtaining and maintaining substantially gainful employment from August 17, 2010. Therefore, as the preponderance of the evidence is in favor of a finding of unemployability due to service-connected disabilities, entitlement to a TDIU is warranted from August 17, 2010, forward. REASONS FOR REMAND Entitlement to a TDIU prior to August 17, 2010 is remanded. With regard to the claim of entitlement to a TDIU for the rating period prior to August 17, 2010, referral for extraschedular consideration is warranted. The evidence indicates that the Veteran has not worked since January 2010. She contends that, for the period prior to August 17, 2010, her service connected disabilities caused a degree of impairment that impacted her ability to obtain and maintain substantially gainful employment. See February 2010 statement from Veteran. As the Veteran did not meet the schedular criteria for a TDIU prior to August 17, 2010, consideration of entitlement to a TDIU for the appeal period prior to August 17, 2010 is warranted under 38 C.F.R. § 4.16(b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, therefore the issue must be remanded to the AOJ for referral to the Director, Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU for the rating period on appeal prior to August 17, 2010 to the Director, Compensation Service, for consideration of an extraschedular TDIU. 2. Then, readjudicate the claim on appeal. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel