Citation Nr: 18154756 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 12-25 634 DATE: December 4, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT 1. The Veteran last worked full time in 2001. 2. For the entire rating period from June 2, 2008, the Veteran has been unable to maintain substantially gainful employment as a result of the service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met for the rating period from June 2, 2008. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from October 1986 to October 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an November 2009 rating decision from the Regional Office (RO), which, in pertinent part, denied TDIU. This case was previously before the Board in January 2014, where the issue on appeal was remanded to obtain a VA examination and medical opinion on employability, and to refer the matter to the Director of Compensation and Pension Service for consideration of a TDIU under 38 C.F.R. § 4.16(b) if the schedular criteria of 38 C.F.R. § 4.16(a) where not met. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998) and VA’s duties to notify and assist, as the Board grants TDIU, which is a total grant of benefit sought on appeal, the Board need not address Stegall compliance or the duties to notify and assist with respect to the appeal of a TDIU. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (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 a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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 may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the 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). 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, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); 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). The Veteran contends that a TDIU is warranted because he is unemployable due to the service-connected disabilities. Specifically, the Veteran contends that he is unable to perform any type of work due to the combined effect of the service-connected disabilities. See October 2014 Lay Statement. In the June 2008 VA Form 21-8940 (Claim), the Veteran asserted that he has not been able to work full time since 2001 due to the service-connected disabilities. In this case, the service-connected disabilities are traumatic arthritis of the left ankle, rated 20 percent disabling; right knee chondromalacia, rated 10 percent disabling; left knee chondromalacia, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated 0 percent disabling. Because the combined rating does not meet the percentage standards of 38 C.F.R. § 4.16(a) for the TDIU rating period from June 2, 2008 (the date of claim), the claim for a total rating may be considered only under 38 C.F.R. § 4.16(b). Pursuant to the January 2014 Board Remand, the appeal for a TDIU was referred to the Director of Compensation and Pension Service for consideration of TDIU under 38 C.F.R. § 4.16(b). See Bagwell v. Brown, 9 Vet. App. 337 (1996); VAOPGCPREC 6-96. In April 2016, the Director of the VA Compensation Service adjudicated and denied a TDIU under 38 C.F.R. § 4.16(b). Because the appeal for a TDIU under section 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides 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. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation & Pension is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the 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). 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, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); 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). After reviewing all the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise on the question of whether the service-connected disabilities prevent the Veteran from maintaining substantial gainful employment for the rating period from June 2, 2008. A review of the record reflects credible lay and medical evidence indicating that the service-connected left ankle disability has caused significant limitation of motion with pain, weakness, stiffness, and swelling. The Veteran has also endorsed constant and throbbing bilateral knee pain, with popping, cracking and swelling and has demonstrated painful limitation of motion in the bilateral knees with weakness. The Veteran has endorsed an inability to do prolonged sitting or standing and walking because of chronic pain, requires constant use of an ankle brace and cane for stability and ambulation, and he has to elevate the lower extremities at waist level to relieve pain from the service-connected left ankle and bilateral knee disabilities. The Veteran also manages pain with narcotic pain medications, which causes some daytime drowsiness. See October 2014 Lay Statement; see also September 2009, May 2012, December 2012, December 2015 VA examination reports. The service-connected hearing loss and tinnitus have caused difficulty understanding conversation, hearing in background noise, and constant ringing in the ears. See October 2014 Lay statement; October 2014 private treatment record; September 2009, July 2012, December 2014 VA examination reports. The May 2012 VA examiner opined that the service-connected left ankle and knee disabilities would prevent walking any distance due to balance issues. The December 2012 VA examiner also opined that the Veteran had limited walking and would need to elevate his feet. Similarly, the VA examiner in August 2015 opined that the knee and left ankle disabilities would not prevent some jobs that involve sitting and limited walking, or cross training into fields such as car sales, telephone sales, customer service, or real estate. See May 2012, December 2012, August 2015 VA examination report. The December 2014 VA examiner opined that the service-connected bilateral hearing loss would not preclude employability if the Veteran wears hearing aids. To the extent that that the VA examiners opined that the Veteran can perform jobs that involve prolonged sitting, the Board gives these opinions little probative value, as they do not account for the Veteran’s credible complaints of increased pain in the knees and left ankle with prolonged sitting that is only relieved by elevation of the lower extremities, which would likely prevent the performance of jobs that require prolonged sitting, to include sedentary jobs. The pain and constant use of a cane to ambulate would limit the capacity for prolonged walking, standing, and carrying items even short distances. The Veteran difficulties with hearing in background noise and understanding conversation due to hearing loss would likely limit the ability to perform jobs that require constant communication over the phone or in person. Ms. Conrad, a vocational specialist, relying in part on Dictionary of Occupational Titles, opined that the Veteran would be less than likely able to maintain substantial gainful employment because left knee and bilateral knee disabilities cause chronic pain and require regular use of a cane, which would make prolonged sitting, standing, and walking difficult, precluding even unskilled sedentary work. Ms. Conrad indicated that drowsiness from narcotic pain medications would limit the ability to concentrate for two-hour periods at a time. The factual determination of TDIU is an adjudicative decision by the Board, so is not dependent upon the opinion of the VA examiner. The record reflects that the Veteran has a high school education and a past relevant work history that is significant for work as a maintenance man for approximately 20 years from 1991 to 2001, which required him to work at higher exertional level. See June 2008 Claim. As such, it is unlikely that the Veteran would be able to return to his job as a maintenance worker due to chronic pain with movement and limited ability to walk, stand, or lift and carry heavy weight. Moreover, given evidence of increased pain with prolonged sitting, some swelling, and the need to elevate the lower extremities at waist level for relief, the Veteran would not likely be able to cross-train into jobs that are performed primarily in and upright seated position. (Continued on the next page)   Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, given the Veteran’s functional limitations, the service-connected disabilities prevent the Veteran from performing the type of employment for which he is trained. Given the Veteran’s physical limitations due to the service-connected disabilities, the Board finds that the Veteran’s service-connected disabilities are of sufficient severity to preclude maintaining substantially gainful employment. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a TDIU is warranted for the entire TDIU period from June 2, 2008. 38 C.F.R. §§ 3.340, 3.341, 4.15, and 4.16(b). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel