Citation Nr: 21000012 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 06-25 547 DATE: January 4, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective April 30, 2004 but not earlier, is granted. FINDINGS OF FACT 1. From August 14, 2003 to April 29, 2004, the Veteran’s service-connected disabilities did not meet the schedular requirements for TDIU; nor was he factually unable to secure and follow substantially gainful employment due to his service-connected disabilities. 2. Since April 30, 2004, the Veteran has met the schedular criteria for a TDIU and the evidence has shown that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Since April 30, 2004, the criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1970 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in July 2014. A transcript of this proceeding has been associated with the claims file. This claim was previously before the Board in August 2015 and January 2019, at which times it was remanded for further development. A TDIU, effective April 30, 2004, is granted. Total disability ratings for compensation based on 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. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. The Veteran is currently service-connected for anxiety disorder, evaluated as 70 percent disabling; peripheral neuropathy of the four extremities, each evaluated as 30 to 40 percent disabling; bilateral knee disabilities, each evaluated as 30 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; a left arm disability, evaluated as 20 percent disabling; a lumbar spine disability, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; a left wrist disability, evaluated as 10 percent disabling; several scars, each evaluated as noncompensably disabling; and bilateral hearing loss, evaluated as noncompensably disabling. The Veteran’s combined evaluation for compensation purposes is 40 percent beginning August 14, 2003, 70 percent beginning April 30, 2004, 90 percent beginning December 21, 2005, and 100 percent beginning August 2, 2013. 38 C.F.R. § 4.25. As such, he has met the threshold criteria for a TDIU since April 30, 2004. The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities as early as April 30, 2004. A review of the record shows that the Veteran last worked sometime between 2002 and 2004. A February 2003 VA treatment record shows that the Veteran last worked one year earlier in security but had been laid off. Also, records from the Social Security Administration show that the Veteran has been in receipt of Social Security disability benefits, primarily due to a lumbar spine disability and secondarily due to an anxiety disorder, since July 2002. The Veteran submitted an initial claim for service connection for several disabilities, to include diabetes and psychiatric disability, in August 2003. He later submitted claims for additional disabilities, to include bilateral knee disabilities, a left arm disability, peripheral neuropathy, and a lumbar spine disability. During the course of these claims, the Veteran was afforded several VA examinations. Significantly, during a September 2004 VA examination, the Veteran reported that he last worked in security in October 2002, presumably due to several physical disabilities contributing to the Veteran being “massively overweight” at approximately 350 pounds. During an April 2007 VA psychiatric examination, the Veteran reported that he retired from his former job in security in 2004 due to lumbar spine, left arm, bilateral knee, and psychiatric disabilities and had been in receipt of Social Security disability benefits since 2004. A February 2008 VA psychiatric examiner opined that the Veteran was “completely unemployable” due to physical, not mental, disability but that his mental problems were mostly associated with his reaction to the stress of dealing with his numerous service-connected physical problems. The Veteran submitted a formal claim for a TDIU due to his service-connected disabilities in June 2010. In connection with this claim, he submitted a June 2010 private psychiatric examination report wherein Dr. W.C. opined that, the Veteran’s service-connected psychiatric disabilities “inhibit him from maintaining gainful employment.” By rating decision dated in July 2010, the RO denied a TDIU. The Veteran disagreed with this decision and perfected this appeal. Thereafter, while developing claims for increased ratings, additional medical opinions were obtained regarding the Veteran’s employability. Significantly, an August 2014 private psychological examination report from Dr. W.C. shows that the Veteran is “likely unemployable given his current symptoms, poor insight and judgment, and need for isolation.” A September 2014 VA diabetes and peripheral nerve examiners opined that the Veteran’s diabetes and associated complications impacted his ability to work given the Veteran’s difficulties using his hands and feet. A November 2016 VA peripheral nerves examiner opined that the Veteran’s diabetic peripheral neuropathy impacted his ability to work as the Veteran had difficulty walking and using his hands due to lack of sensation (he cannot use hand tools and has difficult climbing stairs and driving a car). A November 2016 VA arm examiner opined that the Veteran’s left arm disability impacted his ability to work as the Veteran is unable to reach above chest height with his left arm. Notably, the Veteran has been awarded a combined 100 percent disability rating since August 2, 2013. The United States Court of Appeals for Veterans Claims (Court) has held that an award of a 100 percent disability rating does not necessarily render moot a claim of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level), when considered together with another disability separately rated at 60 percent or more, could warrant special monthly compensation under 38 U.S.C. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU rating even where a 100 percent schedular rating has also been granted. Bradley, at 293-94. Because of this holding, VA’s General Counsel withdrew VAOPGCPREC 6-99, which was contrary to the holding of Bradley. See 75 Fed. Reg. 11229-04 (March 10, 2010). While the issue of entitlement to a TDIU beginning August 2, 2013 may be moot in this case, the issue of entitlement to a TDIU prior to August 2, 2013 certainly is not moot. Initially, while the Veteran did not submit a formal claim for a TDIU until June 2010, the Board notes that a claim for a TDIU can be inferred from his appeal for higher initial ratings set after service connection was granted pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As above, VA treatment records dated as early as February 2003 show that the Veteran was unemployed due, at least in part, to service-connected disabilities. As such, the Board finds that a claim for a TDIU has been pending since August 2003. However, the Veteran did not meet the schedular criteria for a TDIU as of August 2003. As above, the Veteran had a combined disability rating of 40 percent beginning August 14, 2003 and a combined disability rating of 70 percent beginning April 30, 2004. Thus, the earliest the Veteran met the requirements of 38 C.F.R. § 4.16 (a) is April 30, 2004. As such, the remaining question is whether the Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment as of April 30, 2004. As above, a review of the record shows that the Veteran last worked sometime between 2002 and 2004 and has been in receipt of Social Security disability benefits since 2004. Also, a February 2008 VA psychiatric examiner opined that the Veteran was “completely unemployable” due to his service-connected physical disabilities and a June 2010 private psychiatric examiner found that the Veteran’s service-connected psychiatric disabilities “inhibit him from maintaining gainful employment.” Subsequent VA and private medical opinions also indicate that the Veteran is unemployable due to his service-connected disabilities. Such is competent and credible evidence that the Veteran has been unable to obtain and maintain substantially gainful employment since April 30, 2004. As to whether a TDIU is warranted on an extraschedular basis prior to April 30, 2004, the Board notes, prior to April 30, 2004, the Veteran was only service connected for anxiety disorder and diabetes. Pursuant to the January 2019 Board remand, this case was referred to the Director of Compensation and Pension Service in October 2020 for extraschedular consideration. Significantly, the director reviewed the medical records pertaining to the Veteran’s anxiety disorder and diabetes dated prior to April 30, 2004 and determined that the evidence does not support the contention that, due to the Veteran’s service-connected anxiety disorder and diabetes, he was rendered unable to secure or follow a substantially gainful occupation, including in a sedentary or semi-sedentary work environment, during the period August 14, 2003 to April 40, 2004, on an extra-schedular basis. The Board agrees with the October 2020 finding of the Director of Compensation and Pension Service. Significantly, the record contains conflicting evidence about when the Veteran actually stopped working (either 2002 or 2004) which suggests that the Veteran likely worked in some capacity in 2004. Furthermore, while the Veteran has been in receipt of Social Security disability benefits since July 2002, this was due primarily to his lumbar spine disability and service connection for a lumbar spine disability was not in effect until June 2010. While the Veteran’s Social Security disability award was also based, secondarily, on his service-connected anxiety disorder, the Board notes that there is no evidence that the Veteran’s service-connected anxiety disorder, by itself or in combination with the Veteran’s diabetes, resulted in the Veteran’s unemployability prior to April 30, 2004. Significantly, the Veteran’s anxiety disorder was rated as only 30 percent disabling from August 14, 2003 to August 2, 2013 and the February 2008 VA psychiatric examiner noted that the Veteran’s physical problems are “his main issues” and that the Veteran’s anxiety and depression, “in and of themselves would not preclude him from working.” Therefore, the Board finds that a TDIU is warranted effective April 30, 2004, as this is the earliest date on which the evidence demonstrates that the Veteran met the requirements of 4.16(a) and was unable to secure or maintain substantially gainful employment. In short, the Board has resolved reasonable doubt in the Veteran’s favor and finds that a TDIU is granted from April 30, 2004. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, Counsel 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.