Citation Nr: 18149344 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 08-34 033A DATE: November 9, 2018 ORDER Entitlement to a total disability rating for compensation purposes based upon unemployability due to service-connected disabilities (TDIU) prior to December 12, 2008 is denied. Entitlement to a TDIU beginning on December 12, 2008 is granted. FINDINGS OF FACT 1. Prior to December 12, 2008, the Veteran’s only service connected disability consisted of right ankle degenerative joint disease and it was rated as 10 percent disabling. 2. The Veteran’s service-connected right ankle degenerative joint disease did not render him unable to secure and follow a substantially gainful occupation prior to December 12, 2008. 3. Resolving all doubt in the Veteran’s favor, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation beginning on December 12, 2008. CONCLUSIONS OF LAW 1. The criteria for a TDIU prior to December 12, 2008 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017). 2. The criteria for a TDIU from December 12, 2008 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to April 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from the April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A hearing before a Decision Review Officer (DRO) was held in November 2012. A transcript is of record. The Board denied the instant claims in its December 2016 decision. The Veteran subsequently appealed to the United States Court of Appeals for Veterans’ Claims (Court). In its February 2018 Memorandum Decision, the Court vacated the December 2016 Board decision and remanded the appeal to the Board. Additional evidence, including an August 2018 opinion from R. B., has been added to the record since the issuance of the December 2015 supplemental statement of the case. The Veteran’s attorney waived Agency of Original Jurisdiction (AOJ) consideration of this newly received evidence in an October 2018 submission. 38 C.F.R. § 20. 1304(c) (2017). Therefore, the Board may properly consider such newly received evidence. Entitlement to a TDIU Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). If a veteran does not meet the schedular requirements for consideration of entitlement to a TDIU, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities have rendered the veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The Board is precluded from assigning TDIU on an extraschedular basis in the first instance. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 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 non-service-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. 447, 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) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a factual basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10, but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,’ 38 C.F.R. § 4.2). The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Appeal Period Prior to December 12, 2008 The Veteran asserts that his service connected disability prevents him from securing and following a substantially gainful occupation. Upon review of the evidence, the Board finds that a TDIU prior to December 12, 2008, is not warranted. In this regard, for the appeal period prior to December 12, 2008, the Veteran was service-connected for right ankle degenerative joint disease evaluated as 10 percent disabling. His combined disability rating was 10 percent. Such disability did not meet the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a). The Board is precluded from assigning a TDIU rating on an extra-schedular basis under 38 C.F.R. § 4.16(b) in the first instance. Nonetheless, if it is determined that the Veteran is unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities, the Board may refer the matter to the Director of the Compensation Service, for consideration of entitlement to TDIU on an extra-schedular basis. However, the evidence of record does not indicate that his right ankle degenerative joint disease rendered the Veteran unable to secure or follow a substantially gainful occupation prior to December 12, 2008. The Board notes the Veteran applied for Social Security Administration (SSA) disability benefits in May 2006 with a primary diagnosis of hypertension and a secondary diagnosis of diabetes mellitus but was denied benefits. These conditions are not service-connected disabilities for VA purposes. Moreover, VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA; such findings are evidence to be considered in a TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); See also Martin v. Brown, 4 Vet. App. 136, 140. The October 2007 VA examiner notes that the Veteran’s right ankle condition affected his usual occupation and that he is significantly limited in terms of his mobility ability to perform any recreational sports and the ability to hold a job due to pain and decreased motion. However, the examiner does not state that the limitations preclude him from securing substantially gainful employment. In the November 2007 VA examination, the Veteran stated that the reason for his unemployment was due to his back pain and knee pain. These conditions are also not service-connected disabilities for VA purposes. In addition, based on the evidence of record, the Veteran did not submit an Application for Increased Compensation based on Unemployability during the appeal period, indicating that he was unable to work. The evidence of record does not suggest that the Veteran’s right knee condition rendered him unable to work. The Board has considered whether referral of this portion of the TDIU claim to the Director of Compensation Service for extraschedular consideration is warranted, but finds that the weight of the evidence is against the Veteran’s assertion that his service-connected disability alone rendered him unable to obtain or maintain substantially gainful employment prior to December 12, 2008, when considering his educational and work background. In May 2018, the Veteran wrote an affidavit asserting that his right ankle pain and depression in combination, cause him difficulty when trying to sleep. This sleep deprivation has resulted in the Veteran having trouble communicating with others at work. The Veteran asserts that the constant pain in his right ankle is exacerbated by weight bearing, and that the ankle brace prescribed to him in 2014 is used when he leaves his home. The occupation as a security guard in 2003 was affected greatly by his right ankle condition, and he contends that the only reason he was able to perform in this job was due to being able to use a golf cart to get around the property. He further states that although he was working as a security guard, he was unable to make use of his mechanical engineering skills, which increased his depression. In the May 2018 private examination, the examiner acknowledges the limitations the Veteran experiences as a result of his depression, right ankle condition and tinnitus. The examiner specifically attributes the Veteran’s inability to secure substantially gainful employment to his right ankle condition and depression. However, the Veteran was not service-connected for depression during this period. Furthermore, the examiner correlates the Veteran’s tinnitus to his inability to work, which was also not service-connected during the period on appeal. Accordingly, as the combined disability rating of the Veteran’s service-connected disability prior to December 12, 2008, does not meet the schedular criteria of 38 C.F.R. § 4.16(a) and the weight of the evidence is against the Veteran’s claim that his service-connected disability rendered him unable to obtain and maintain substantially gainful employment during this period, referral for extraschedular consideration is not warranted, and a TDIU must be denied. See 38 C.F.R. § 4.16 (b). Appeal Period Beginning on December 12, 2008 For the appeal period beginning on December 12, 2009, the Veteran is service-connected for right ankle degenerative joint disease, which is rated 20 percent disabling; depression secondary to right ankle degenerative joint disease, which is rated at 70 percent disabling; right ankle degenerative joint disease, which is rated at 20 percent disabling and tinnitus, which is rated at 10 percent disabling. As such disabilities combine to an 80 percent rating as of December 12, 2008, the Veteran meets the threshold criteria for a TDIU as of such date. In the March 2010 Application for Increased Compensation based on Unemployability, the Veteran reported last working in 1998. His occupation was in public transportation. At that time, he reported having four years of high school education along with additional training and certifications in high voltage maintenance, HVAC, and light rail signal. In such application, he reported that depression and left ankle disabilities rendered him unable to work. The Veteran was provided VA examinations which addressed his employability. The March 2010 VA examination opined the Veteran’s right ankle arthralgia has a mild effect on his ability to engage in physical employment and no effect on his ability to engage in sedentary employment. The Veteran’s tinnitus has no effect on his ability to engage in physical or sedentary employment. A November 2012 VA psychological examination opined that the Veteran seemed to have the capacity for employment based on the examination results. Specifically, the examiner indicated that the Veteran’s reported symptoms of depression do not appear to impede his capacity for physical and/or sedentary employment, from a psychological perspective. Another November 2012 VA examination for tinnitus reported the examiner’s opinion that the tinnitus should not render the Veteran unable to secure or maintain substantially gainful employment. While the tinnitus may be noticeable at times, the examiner indicated it should not keep him from seeking or keeping employment. The November 2012 VA examination for the Veteran’s right ankle degenerative joint disease reported the Veteran’s ankle conditions impact his ability to work in that he used a cane regularly, was able to walk 1 block and able to stand for 15 minutes at a time. VA examinations were also performed in September 2013 on the Veteran’s service-connected disabilities and rendered opinions regarding the Veteran’s employability. The September 2013 VA examination opined the Veteran’s right ankle degenerative joint disease impacted his ability to work. In particular, the examiner indicated that the Veteran is able to walk about a block (though he has other factors besides his ankle affecting his ability to ambulate) and could stand for approximately 10 to 15 minutes. It was noted that he used a cane regularly. Regarding his employability, the examiner indicated the Veteran’s ankle would cause a moderate impairment to work in any physically demanding workplace and a mild impairment to working in a sedentary job. Further, the September 2013 VA examination found the Veteran’s tinnitus did not impact the ordinary conditions of daily life, including his ability to work. Lastly, the examiner found there was no indication that “the Veteran’s moderate psychiatric condition alone rendered him unemployable and there is likely some kind of sedentary and/or solitary work that the Veteran would be capable of performing”. Thereafter, the October 2013 VA examination provided an opinion on the aggregate effect of the Veteran’s service-connected disabilities on employability based on the Veteran’s most recent examinations. The examiner’s opinion was that the Veteran’s service connected right ankle degenerative joint disease, depression and tinnitus, in the aggregate, resulted in functional impairment from his ability to walk being limited to about a block and ability to stand for only 10-15 minutes, as well as his reduced reliability and productivity due to a lack of motivation, depressed mood, loss of concentration and subjective distress functioning socially. Following the September 2015 Board remand, additional examinations were obtained. The October 2015 VA examination provided the opinion that the Veteran has not reported tinnitus has an impact on his daily activities. Therefore, tinnitus will not affect the Veteran’s ability to function in an occupational environment. Another October 2015 VA examination indicated the Veteran’s right ankle would likely negatively impact his ability to work in any job requiring prolonged weight bearing activities or carrying of heavy weight. He should generally not carry anything heavier than 20-25 pounds. The examiner opined that the Veteran would likely better tolerate a job that allowed flexibility to change positions or stretch his ankle as needed as well as less than full time work would be better tolerated. Moreover, the Veteran reported a need for use of a cane which would also be a consideration for physically demanding type of work. In the May 2018 Application for Increased Compensation based on Unemployability, the Veteran indicated that the last time he worked full-time was in 2003. He indicated that he was employed as a security guard from 2001 to 2003. This is in contrast to his employment as a passenger amenities mechanic from 1996 to 2000. He indicated that the most he had earned in one year was $39,019, in 1998 as a passenger amenities mechanic. He also indicated the date his disability affected his full-time employment and the date he became too disabled to work was February 28, 2003, attributing it to depression, right ankle degenerative joint disease and tinnitus. In addition to this, the Veteran provided an affidavit in May 2018, where he reports that his ankle condition made it very difficult for him to walk and put weight on his right foot. He states that his depression was exacerbated at work and impacted his ability to work, in combination with the pain he experiences form his right ankle condition. According to the Veteran this led him to be distracted and unable to focus at work. An August 2018 private employability evaluation specifically addressed his employability based on his service-connected disabilities. She acknowledges his work as a mechanical engineer from 1990 to 1996, and as a passenger amenities mechanic from 1996 to 2000. The responsibilities held by the Veteran included repairing and maintaining physical structures of commercial establishments, using hand tools and power tools, replacing defective electrical switches, painting structures and plumbing fixtures. While working as a security guard, the Veteran’s responsibilities consisted of patrolling a building and the grounds, examining doors, locking gates and windows to determine security and recording data. The examiner notes that at times, the Veteran would have to work a 16 hour shift due to the unreliability of other workers. Most of his patrols were completed in a golf cart and the remainder of his shift was spent in a booth. According to the Dictionary of Occupational Titles, the maintenance repairer job held by the Veteran was classified as medium work, and the security guard position was classified as light work. The examiner stated that the Veteran’s associated depression has further impacted his attention and concentration and has compromised his ability to stay focused. She notes that when the Veteran’s ankle pain exhibits a flare-up, the pain would reach an 8 out of 10 level. The examiner noted that the Veteran’s depression was exacerbated in 2008 as a result of his decision to enroll in computer classes in the hopes of obtaining additional skills. She opined that his limitations preclude even sedentary work, as employment at all levels of physical exertion require that the Veteran be attentive, productive and reliable. Notably, the Veteran is not able to keep his right foot elevated as he requires, due to the severity of his ankle pain and depression. The examiner opined that it was more likely than not that by 2008, the Veteran was no longer capable of securing and following substantially gainful employment due to his service connected right ankle condition and depression. Based on the evidence on record, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as of December 12, 2008. Hence, the criteria for TDIU beginning on December 12, 2008 is met. The record suggests that the Veteran would be limited to no more than marginal employment due to his service connected disabilities given his incapacity to concentrate due to the pain in his knee, his inability to walk for more than 10 minutes and lack of work history consistent with sedentary employment, formal educational history, and more educational enrichment in the mechanical field and occupational skills of that particular vocation. Notably, the question of employability is ultimately a legal one, not a medical one The Board finds the most probative evidence of record to be the August 2018 examination as it incorporates the Veteran’s service-connected disabilities into the determination that cumulatively, he is precluded from securing substantially gainful employment. As discussed, the Board finds the September 2013 VA examination report and October 2013 VA examinations of significant probative value regarding the functional limitations that prevent the Veteran from performing sedentary work. Consequently, in light of the Veteran’s education level, his work history, and the nature of the limitations of his service-connected disabilities, the Board resolves all doubt in his favor and finds that such service-connected disabilities render him unable to secure or follow a substantially gainful occupation for this appeal period. Therefore, a TDIU is warranted for the appeal period beginning on December 12, 2008. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk