Citation Nr: 20050477 Decision Date: 07/29/20 Archive Date: 07/29/20 DOCKET NO. 17-40 707 DATE: July 29, 2020 ORDER Effective September 30, 2014, a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT Effective September 30, 2014, the Veteran met the schedular criteria for assignment of a TDIU rating and his service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating effective September 30, 2014 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1963 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board, in pertinent part, denied the Veteran’s claim for a TDIU for the period prior to September 26, 2017. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted the parties Joint Motion for Partial Remand (Joint Motion or JMR) and vacated the Board’s April 2019 decision. The parties agreed that the Board erred by not providing an adequate statement of reasons or bases for its determination. The parties agreed that the Board must explain how the Veteran is capable of sedentary work with due consideration given to his educational and occupational history. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) (the precise meaning of sedentary work in any specific case should be based on the context clues of the VA examination or medical report cited as authority). The parties also agreed that the Board must explain why it limited its consideration of entitlement to a TDIU rating to the period prior to September 26, 2014 and address whether the Veteran is entitled to a TDIU rating for the period after September 2017. A combined schedular, 100 percent, rating has been assigned effective from September 26, 2017. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to a TDIU rating for the period prior to September 26, 2017 Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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 disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 as totally disabled. Prior to September 26, 2017, service-connection was in effect for peptic ulcer disease (60 percent disabling), s/p esophageal surgery with dysphagia and residual scar associated with peptic ulcer disease (80 percent disabling) and diabetes mellitus (20 percent disabling); the combined rating for these service-connected disabilities was 90 percent. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran’s September 2014 application for TDIU reflects that he completed four years of high school and two years of college. He reported that his service-connected ulcer, esophageal and diabetes disabilities prevented him from securing or following any substantially gainful occupation. He reported that he became too disabled to work in 2010. The July 2013 reports of VA examinations documents that the Veteran’s peptic ulcer disease and esophageal disability did not impact his ability to work. The examiner concluded that the Veteran’s esophageal disability and peptic ulcer disease did not affect his ability to perform physical and sedentary activities of employment. The March 2015 reports of VA esophageal conditions and stomach and duodenal conditions examinations document that the Veteran’s peptic ulcer disease and esophageal disability did not impact his ability to work. The March 2015 report of VA diabetes mellitus examination reflects that the Veteran’s diabetes mellitus did impact his ability to work. The examiner explained that because of his diabetes mellitus, the Veteran had diminished exercise tolerance capacity which undermined his ability to perform physical activities of employment. The Veteran’s March 2020 affidavit reflects his description of his peptic ulcer disease and esophageal disabilities and their impact on his ability to work. He reported that his peptic ulcer disease and esophageal disabilities caused him to take longer to complete tasks at work as compared to other employees. He reported that he received reprimands for working late to finish work and for leaving on time and not finishing his work. He reported that his employer threatened termination on many occasions. The May 2020 Vocational Assessment Report documents the rehabilitation counselor’s opinion that the Veteran’s service-connected peptic ulcer disease and esophageal disabilities rendered him unable to secure and follow substantially gainful employment, including sedentary skilled and unskilled employment, since at least October 2011. The counselor noted that sedentary employment was defined as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. The counselor stated that sedentary work involved sitting most of the time but may involve walking or standing for brief periods of time and observed that jobs were sedentary if walking and standing were required only occasionally and all other sedentary criteria were met. The counselor explained that all employers in the competitive labor market require basic expectations be met by their workers, regardless of the skill or exertional level of a position. Examples of the basic expectations that must be met by workers included sustaining focus and attention for at least two hours at one time throughout the work day; refraining from taking unscheduled or prolonged breaks away from the work station; attending work on a regular basis, free from excessive unscheduled absences, tardiness or early departures; and, producing a certain minimum amount of work while on the job. The rehabilitation counselor opined that the Veteran was unable to meet the basic requirements of all work, even unskilled sedentary work on a consistent and reliable basis due to his service-connected peptic ulcer disease and esophageal disabilities since at least October 2011. The counselor explained that symptoms of the Veteran’s disabilities included chronic acid reflux which was exacerbated by lifting and bending; distracting heartburn; the need for excessive unscheduled breaks to discharge stomach acid; severe fatigue due to sleep impairment; and, severe limitation with maintaining concentration, focus, and pace. The rehabilitation counselor stated that the Veteran’s disabilities had significantly eroded his ability to perform the full range of physical duties required in any competitive employment since at least October 2011. Specifically, the Veteran was unable to bend due to the risk of acid coming into his throat. The counselor also noted that the Veteran would more likely be precluded from attending to a variety of work tasks required in even sedentary employment. The counselor explained that the Veteran would be unable to meet the standard workplace requirements of pace, productivity and reliability, even in an unskilled sedentary work role due to his service-connected esophageal disability. The counselor reiterated that employees are expected to sustain concentration on work tasks for two consecutive hours and are only allowed to be off-task 10 percent of the day or less and noted that the Veteran experienced chronic daytime fatigue due to his sleep impairment and unpredictable acid reflux and heartburn which were distracting and required prolonged periods to discard the acid and recover from the symptoms. The counselor explained that the Veteran’s disabilities symptoms slowed his work pace and caused him to either have to work late to make up for missed work or stop on time and leave work unfinished, both of which had led to him receiving reprimands. The counselor stated the Veteran’s unpredictable and chronic acid reflux necessitated unscheduled breaks to utilize the restroom to discard acid and noted these unscheduled breaks resulted in the Veteran being off task and unproductive in excess of 10 percent of the workday (6 minutes per hour). In addition, the counselor found that the Veteran’s unpredictable esophageal pain, heartburn and acid reflux symptoms were distracting and caused him to take extra time to complete his work tasks and interfered with his ability to sustain concentration on work tasks for two consecutive hours and would subsequently render him off-task in excess of 10 percent of the day. The counselor concluded that the excessive time spent off task and impaired concentration would preclude the Veteran from completing a certain specific amount of work each day which would lead to him being considered an unreliable and unproductive employee. Further, the counselor explained that the Veteran’s daytime fatigue, in conjunction with his severe esophageal pain, heartburn and need for unscheduled breaks to discard acid interfered with his ability to maintain concentration and focus on work tasks for extended periods, as required in all competitive employment and rendered him an unreliable and unproductive employee. The rehabilitation counselor concluded that as a result of his significantly reduced pace and excessive off-task tendencies, the Veteran would be unable to secure and follow substantially gainful employment in any occupation, regardless of skill or exertion level. In addition, the counselor explained that the Veteran’s prior work history as a mail carrier and post-office clerk were classified as semi-skilled and any skills acquired performing those occupations were likely industry specific and were not transferable to sedentary occupations. The counselor reported that the Veteran’s inability to maintain persistence and pace, sufficient for employment at even the unskilled sedentary level due to his service-connected peptic ulcer and esophageal disabilities would erode his ability to perform all occupations, regardless of his education and work history. Thus, the rehabilitation counselor concluded that the Veteran had been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since at least October 2011 due to his service-connected disabilities. Given the Veteran’s contentions regarding the affects his service-connected peptic ulcer and esophageal disabilities had on his ability work, in light of the Joint Motion, in consideration of the rehabilitation counselor’s opinion that the Veteran’s service-connected peptic ulcer and esophageal disabilities rendered him unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level since at least October 2011 (see May 2020 Vocational Assessment Report), the Board concludes that assignment of a TDIU rating effective the date his claim for entitlement to a TDIU rating was received is warranted. Thus, a TDIU rating beginning September 30, 2014 (date present claim for a TDIU rating was received) and continuing thereafter is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.