Citation Nr: 20052916 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-19 643 DATE: August 10, 2020 ORDER 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted effective June 21, 2012. 2. Entitlement to a TDIU rating based on service-connected disabilities prior to June 21, 2012, is denied. FINDINGS OF FACT 1. With resolution of doubt in the Veteran’s favor, the evidence approximates the finding that, effective June 21, 2012, his service-connected disabilities have been so severe that they preclude him from securing and following a substantially gainful occupation. 2. The preponderance of the evidence is against findings that the Veteran’s service connected disabilities were so severe prior to June 21, 2012, that they precluded the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a TDIU rating have been met effective June 21, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 2. The criteria for a TDIU rating have not been met prior to June 21, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty during two periods separated by eight years, i.e., from March 1974 to April 1975, and from February 1983 to July 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the August 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that addressed the Veteran’s disability rating claims. The Veteran appealed the RO’s determinations to the Board and, in his April 2017 correspondence accompanying his Substantive Appeal, raised the issue of a TDIU rating. Therefore, the Board has jurisdiction over his TDIU claim under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is service connected for 15 disabilities. Effective August 2010, eight of his disabilities were rated as noncompensable, four were rated at 10 percent each, and three were rated above 10 percent. Specifically, his gastroesophageal reflux disease (GERD), residuals of an injury to the third and fourth digits of the left hand, residuals of a laceration of the left thumb, residuals of an injury to the first and third toes of the left foot, left-ear hearing loss, and allergic rhinitis were rated as noncompensable. The Veteran’s arrhythmia, right-shoulder bursitis, and degenerative joint disease of the cervical spine and right elbow were rated at 10 percent each. His right-knee meniscus tear was rated at 20 percent, his residuals of multiple head traumas were rated jointly at 40 percent, and his obstructive sleep apnea (OSA) was rated at 50 percent. Thus, effective August 2010, the Veteran’s combined rating was 80 percent. Effective June 21, 2012, the rating for his arrhythmia was increased from 10 percent to 30 percent, thus bringing his combined rating to 90 percent. Further, the rating for the Veteran’s GERD was increased from noncompensable to 20 percent effective August 2017. This change did not affect his combined 90 percent rating. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). However, even if the rating requirements are met, TDIU may be awarded only if the evidence shows that a veteran’s impairment is so severe that it is impossible for him/her to follow a substantially gainful occupation. Consideration may be given to the veteran’s level of education, special training and previous work experience, but not to his/her age or the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Therefore, the inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993), i.e., to prevent the veteran from “securing and following a substantially gainful occupation,” Ray v. Wilkie, 31 Vet. App. 58, 73 (2018). The U.S. Court of Appeals for Veterans Claims clarified that the phrase “unable to secure and follow a substantially gainful occupation” has two components, see id., an economic component and a noneconomic component. The economic component derives from an employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides. Id. Therefore, the economic component suggests a living wage, and a marginal employment does not qualify as a substantially gainful occupation. 38 C.F.R. § 4.16(a). For instance, marginal employment is present if a veteran’s earned annual income is equal or below the poverty threshold for one person, as established by the U.S. Department of Commerce, Census Bureau. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Further, a marginal employment may also exist in certain circumstances when the veteran’s earned annual income exceeds the poverty threshold but (s)he is employed in a “protected environment,” to include a family business. In determining whether the employment is “protected,” the Board considers the magnitude of the veteran’s job responsibilities and whether the environment was designed to rehabilitate, train, or provide employ for those with disabilities. Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). The noneconomic component consists of three aspects, i.e., the veteran’s history, to include his/her education, skills, training, and employment record, the veteran’s physical ability, to include his/her limitations in lifting, bending, sitting, standing, walking, climbing, grasping, reaching, hearing, seeing, and the veteran’s mental ability, to include his/her deficiencies in memory, concentration, adapting to change, handling stress, getting along with coworkers, reliability, and productivity. Here, the Veteran’s combined rating has been 80 percent from August 2010, and 90 percent from June 2012. Further, since August 2010, he had two disabilities ratable at 40 percent or more. Therefore, the Veteran has qualified for a schedular TDIU consideration through the entire period on appeal. 38 C.F.R. § 4.16(a). The Board gives the Veteran the benefit of the doubt on any issue material to his claim when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (quoting 38 U.S.C. § 5107 (b)). The Board, however, considers all of the evidence of record and makes appropriate determinations of competence, credibility, and weight. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, a lay witness may opine on questions of diagnosis and etiology, provided that such matters are amenable to a lay person’s observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Veteran’s OSA has been rated at 50 percent throughout the period on appeal and has been his highest-rated disability. However, the Veteran’s medical records demonstrate that the Veteran’s OSA manifested by occasional apneas that did not affect his daily activities, and the rating was based entirely on his nightly use of a continuous positive airway pressure device. The Board acknowledges the July 2019 lay statement from the Veteran’s wife’s opining that “sleep apnea causes overall body function decline.” However, the Veteran’s wife was not been shown to possess the expertise needed to opine on general medical consequences of OSA. Layno, 6 Vet. App. at 469. Therefore, the Board is without a basis to find that the Veteran’s OSA has affected his ability to secure and/or follow a substantially gainful occupation during any portion of the period on appeal. The Veteran’s second-highest rated disability is residuals of multiple head traumas that have been jointly rated at 40 percent throughout the period on appeal. The Veteran’s medical records show that this disability has manifested by memory deficits and irritability. In the April 2017 correspondence, the Veteran opined that, after his separation from service, his “body [became] way past being whole or employable.” In June 2019, the Veteran submitted a VA Form 21-8940 demonstrating that, from February 2002 to July 2010, i.e., simultaneously with the last eight years of his service, the Veteran worked as a part-time laborer at a flooring business. The Veteran’s VA Form 21 8940 also indicated that, from December 1984 to June 21, 2012, he worked at least 20 hours per week as a co manager at a farm in Ohio earning $3,000 per month from that employment. The Veteran also submitted two lay statements from his wife, one lay statement from his stepchild K.A.C., and one lay statement from K.L., the Veteran’s supervisor at the flooring business where he had worked as a part-time laborer. K.L. stated that the Veteran was responsible for moving tile and bags of grout, and assisting with installation of floors and tile. K.L. noted that the Veteran was always easily distracted and irritable, and made mistakes, to include arithmetical mistakes. However, K.L. stated that, after the Veteran’s separation from service, the Veteran expressed the desire to work full time at the flooring business. K.L. also stated that he declined the Veteran’s request and elected to let him go because the Veteran’s work patterns became incompatible with the flooring business’ needs. The Veteran’s desire to work full time at the flooring business after his separation from service is inconsistent with his assertion that his “body [became] way past being whole or employable” after his discharge. Further, while K.L.’s statement indicated that he elected to let the Veteran go, this fact reflected the flooring business’ evolving needs and cannot be construed as indicative of the Veteran’s inability to follow a substantially gainful occupation. This is so because K.L.’s statement indicated that the Veteran’s work patterns had remained the same throughout his eight-year employment with the flooring business, and the flooring business did not qualify as a protected environment during any portion of the period on appeal. Moreover, K.L.’s statement that the Veteran was prone to losing focus and making mistakes in general and arithmetical mistakes in particular is inconsistent with the Veteran’s DD-214 Form, which indicates that, simultaneously with his part-time employment at the flooring business, the Veteran served as an Aircraft Flight Equipment Craftsman, i.e., performed tasks that required high concentration, focus, and mathematical tasks. See http://www.mosdb.com/air-force/1P071/mos/1103/ (showing that the Veteran scheduled, conducted, and managed inspections of flight equipment, chemical defense equipment, and asset inventories; monitored equipment operations; assembled, disassembled, inspected, and repaired aerospace weapon system components and emergency evacuation systems; scheduled, conducted, and supervised chemical defense training; prepared for response to chemical, biological, radiological, and nuclear contaminations, and supervised contamination control area processing). Therefore, while the Board acknowledges that K.L. was competent to report his observations of the Veteran’s employment patterns, the Board allocates low probative value to K.L.’s lay statement. In October 2019, the Veteran’s wife executed a lay statement asserting that she asked [the Veteran] why he thought he could not become gainfully employed. He said[,] “My thought process would not last long enough or be focused to complete any task.” . . . [The Veteran’s wife asserted that] it took him 35 minutes to put that sentence together. The Veteran’s wife further asserted that she wrote his sentence “down piece by piece [because, otherwise,] he would not [have] remembered it.” The Veteran’s wife also opined that the Veteran’s unemployability was demonstrated by his frequent misplacement of his wallet, keys, cellphone, and glasses, and by his “off color” remarks. The Veteran’s wife further stated that the Veteran’s cognitive deficit and behavioral problems developed shortly after he his first in-service head trauma. The Board acknowledges that the Veteran’s wife is competent to report his behavioral patterns. However, the Veteran’s wife’s October 2019 account reflects her lay opinions and seems inconsistent with objective evidence of record. For instance, while she asserted that it took the Veteran 35 minutes to put together a 15-word sentence, i.e., that he was pronouncing about one word per every two minutes 20 seconds (to include such one-syllable words as “my,” “not,” “or,” “be,” “to,” and “any”), a transcript of the Veteran’s hearing conducted in connection with his claims for increased ratings for his disabilities showed that the Veteran’s speech was of a normal rate, coherence, and complexity, and he did not require to have pieces of his sentences written down. To illustrate, when asked to describe the effect of his disabilities on his daily activities, the Veteran testified: I can’t function the way I used to. I can’t. Even just mowing the yard and pushing the mower a little, I get, you know, tired. I can walk up a flight of stairs, [and] I’m tired. If I go to the farm and do something over there, you know, I am just -- it's nothing like it used to be. I mean, I could do things for hours before. Now, I, you know, I may do something for 10 minutes, or maybe for three minutes, it depends on what it is, and I feel that effect of the heart, the atrial fib[rillation]. Moreover, during his August 2010 VA examination, the Veteran reported that he had experienced his first head trauma 15 years prior to his discharge. Therefore, his history of 15 years of successful service, which he performed simultaneously with his part-time work at the farm and his part-time work at the flooring business, is incompatible with the Veteran’s wife’s assertion that the Veteran’s mental health symptoms barred him from following a substantially gainful employment during that 15-year period. Therefore, the Board allocates no probative value to the Veteran’s wife’s October 2019 lay statement. However, the Board also acknowledges the Veteran’s wife July 2019 lay statement and the lay statement executed by the Veteran’s stepchild, K.A.C. Specifically, in her July 2019 lay statement, the Veteran’s wife stated that the Veteran was “short tempered and explosive.” Similarly, K.A.C. stated that he had “uncontrolled outbursts” and memory problems. To illustrate that point, K.A.C. stated that the Veteran could “be doing one thing and [then,] for no reason[,] go somewhere else and start doing another thing[,] and just [leave] what he was doing unfinished[, for instance,] he had even left tractors running [upon] forgetting to shut them off.” The lay statement executed by K.A.C. and the Veteran’s wife July 2019 lay statement are not inconsistent with the objective evidence of record. Therefore, the Board finds the Veteran’s wife’s July 2019 lay statement and K.A.C.’s statement competent, credible, and probative as to the functional limitations caused by the Veteran’s residuals of multiple head traumas during the entire period on appeal. The Board also acknowledges that, throughout the period on appeal, the Veteran’s bursitis manifested by painful motion limiting his forward flexion to 165 degrees, and his cervical spine disability manifested by occasional pain that did not affect his range of motion. His meniscal tear manifested by pain, stiffness, and effusion without affecting the flexion or extension of his knee, and his elbow condition manifested by a slight limitation in mobility. The Veteran’s residuals of an injury to the left hand digits manifested by occasional pain, stiffness, decreased grip strength, and his residuals of an injury to the left-foot toes manifested by brief periods of pain after prolonged standing and walking on hard surfaces or in cold weather. The Veteran’s hearing loss was of the Level I, and his rhinitis manifested by occasional nasal congestion in the mornings. Further, throughout the period on appeal, his GERD manifested by heartburn, and his arrhythmia manifested by less than four episodes per year of atrial fibrillation until June 21, 2012. However, while the Board is mindful of the cumulative functional limitations caused by these disabilities until June 21, 2012, the evidence of record demonstrates that these symptoms did not prevent him from following a substantially gainful occupation. Specifically, the Veteran’s VA 21-8940 Form indicates that he worked at least 20 hours per week at the farm. Further, during his August 2010 VA examination, the Veteran reported that was a co-owner of the farm. The farm is located in a municipality other than that where the Veteran was raised, and he did not work at the farm during the eight years between his first and second periods of service. The record shows that the Veteran started working at the farm a year and a half after his second period of service commenced, i.e., when he was 29 years old and, upon divorcing his first wife, married his current wife and began residing at the same municipality where the farm was located. Moreover, the Veteran reported that the farm was a 160-acre livestock business that had numerous buildings. The Veteran also reported that he was a farmer who performed all labor-intensive functions at the farm, and some of his in-service injuries occurred at the farm, e.g., he injured his left-foot toes in 2000 when he dropped a wagon tongue on his foot. Therefore, while the record suggests that the farm has become the Veteran’s family business upon his second marriage, the Board is without a basis to conclude that the farm was a protected environment during any portion of the period on appeal. Further, given that the Veteran was deriving $3,000 per month in 2012 for working on a part-time basis at the rural Ohio location of the farm, the Board is without a basis to conclude that the Veteran’s employment at the farm qualified as marginal. However, the Veteran’s medical records show that, while all of his disabilities other than his arrhythmia had remained at the same level of severity until August 2017, the Veteran’s arrhythmia increased in severity in June 2012, i.e., at the same time when he stopped working at the farm. The Veteran also reported that his children and stepchildren took over the farm because he began having chest discomfort when moving blades of the mower, problems climbing steps or walking between buildings of the farm, and experiencing sweating episodes after working at the farm. In sync, the Veteran’s medical records demonstrate that he has begun suffering more than four episodes of atrial fibrillation per year and required continuous medication for the condition. Further, K.A.C.’s lay statement indicated that the Veteran had an incident of vertigo that required an emergency room visit. Given that the Veteran’s medical and employment records are consistent in showing that the cumulative effect of his disabilities increased in severity at the same time when he stopped working at the farm, the preponderance of the evidence establishes that the Veteran became unable to follow a substantially gainful occupation when his arrhythmia increased in severity, i.e., effective June 21, 2012. Further, while the Veteran GERD increased in severity in August 2017, this fact does not alter the outcome of the Board’s analysis because the Veteran’s inability to secure and/or follow a substantially gainful occupation developed prior to August 2017. Accordingly, the Veteran’s claim for entitlement to a TDIU rating is granted effective June 21, 2012. In contrast, a TDIU rating is denied prior to June 21, 2012, because the Veteran was employed at a substantially gainful occupation until June 21, 2012. Faust v. West, 13 Vet. App. 342 (2000) (if a claimant is employed at a substantially gainful occupation, the employment constitutes “actual employability” as a matter of law). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan 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.