Citation Nr: 21000557 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 06-30 656 DATE: January 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted from October 4, 2005 through April 18, 2007, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT From October 4, 2005 through April 18, 2007, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW From October 4, 2005 through April 18, 2007, the criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1997 to October 2005. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and assigned initial disability ratings for multiple disabilities. The Veteran timely appealed the initial ratings. In April 2013, the Board recognized entitlement to a TDIU as part of the appeal for a higher initial disability rating. In February 2019, the Board adjudicated the disability ratings claims on appeal and remanded the issue of entitlement to an effective date prior to October 27, 2014 for a TDIU award. The issue of an earlier effective date for TDIU has returned to the Board for review. Implementation of the February 2019 Board decision granting higher initial ratings resulted in the Veteran receiving special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s)(1), referred to as SMC(s), based on a single disability rated total and additional disabilities rated 60 percent or more from April 19, 2007. Given that TDIU is not rendered moot by a 100 percent rating only when it can assist in obtaining SMC(s)(1), the issue of entitlement to TDIU is moot from April 19, 2007. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008) (a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s)(1)). The Board has recharacterized the claim accordingly. Entitlement to a TDIU from October 4, 2005 to April 19, 2007 TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16.    The Court has clarified that entitlement to TDIU must be considered for the entire appeal period of any associated rating claim where the Veteran asserts unemployability and claims the highest rating possible.  Harper v. Wilkie, 30 Vet. App. 356, 362 (2018).  In this case, the Veteran filed service connection claims in June 2005 as part of a pre-separation application. A December 2005 rating decision granted service connection for multiple disabilities and assigned initial ratings. The Veteran appealed the initial ratings and raised the issue of TDIU, which was formally added to the appeal in the April 2013 Board remand. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, the date of the claim is October 4, 2005, the day following the Veteran’s separation from active service since the claim dates back to the service connection claims filed in June 2005. 38 C.F.R. § 3.400(b)(2). From October 4, 2005 through April 18, 2007, the Veteran is service-connected for the following disabilities: sinusitis, 30 percent disabling; thoracolumbar strain, 20 percent disabling; and the following disabilities, each with a 10 percent rating: depression, cervical strain, left shoulder, right knee, left knee, right ankle, left ankle, right shoulder, and tinnitus. These disability ratings are in addition to noncompensable disabilities. The Veteran’s combined disability rating from October 4, 2005 through April 18, 2007 is 80 percent. The Board notes that the February 2019 remand found that the 80 percent combined rating prior to April 19, 2007 did not meet the schedular TDIU criteria of having a single disability ratable at 40 percent or more. Upon further consideration, there are numerous orthopedic disability ratings from October 4, 2005. When considering the orthopedic disability ratings together, they count as one 40 percent rating for schedular TDIU eligibility purposes under 38 C.F.R. § 4.16(a)(3) as a single disability affecting the orthopedic system. See Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (38 C.F.R. § 4.16(a) requires aggregation based on the combined ratings table to determine whether multiple service-connected disabilities “considered as one disability” meet the 60 percent or 40 percent thresholds). Accordingly, the Board finds that the Veteran’s combined rating from October 4, 2005 satisfies the schedular criteria under 38 C.F.R. § 4.16(a) with a single disability rated at least 40 percent disabling and a combined rating of at least 70 percent. In analyzing TDIU claims, the central inquiry is "whether the 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 level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).   In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic.  The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.  The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.    In June 2005, the Veteran had a pre-separation physical examination. He reported pain affecting his shoulders, knees, ankles, neck and low back as well as constant sinus problems. He currently worked as a welder. Detailed physical findings were reported. In July 2005, the Veteran had a pre-separation psychiatric examination. As relevant, he reported completing high school before joining the military. He planned to start college after separation. He was unsure as to what course of study he wanted to pursue. He described occupational impairment from anhedonia, fatigue and poor concentration. The psychiatrist diagnosed depression with anxiety, poor sleep and anger management problems. December 2005 VA mental health records noted complaints about poor sleep, irritability, anhedonia, fatigue and emotional detachment. The psychiatrist assessed recurrent major depression and recommended supportive therapy to prevent decompensation. January 2006 VA mental health records included similar symptom reports. The only activity the Veteran participated in was boxing. The psychiatrist commented that the Veteran was having difficulty adjusting to civilian life. The Veteran remained mostly homebound and was socially withdrawn. April 2006 VA mental health records noted that the Veteran continued to have anhedonia from amotivation and physical pain limitations. However, he wanted to enroll in college and was interested in teaching boxing. The psychologist observed that the Veteran had an apathetic appearance and lacked a future-oriented outlook. He indicated that the Veteran’s commitment to college was questionable. In his September 2006 substantive appeal, the Veteran reported that all his service-connected disabilities were worsening. He cited increased joint pain and adjustment problems transitioning to civilian life. In April 2007, the Veteran had a VA mental disorders examination with a psychiatrist. In pertinent part, he reported that he was a first year student studying computer science. He had not worked between separation and starting school. He reported that his depressive disorder interfered with his daily activities. He had concentration problems and poor school performance. The psychiatrist assessed moderate impairment and deficiencies with school performance. In January 2010, Social Security Administration (SSA) determined that the Veteran had been disabled since October 3, 2005. The SSA Disability Determination and Transmittal worksheet reported the Veteran as being disabled from October 3, 2005 due to Disorders of Back (Discogenic and Degenerative). In February 2010, the Veteran filed VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. He reported that he had not worked since separation and that he was too disabled to work at the time of separation. His highest educational attainment was two years of college. He stated that he studied for a college degree in computer science in January 2007 but did not complete the degree program. In March 2010, the Veteran reported that he tried to return to school without success. His inability to concentrate and memory problems led him to fail most of his classes. He attached a transcript confirming that he started in school in January 2007 and had many failing grades. The Board will evaluate the claim based on the Court’s definition of "unable to secure and follow a substantially gainful occupation" in Ray, supra, by weighing the probative value of the most pertinent evidence in context of the entire record.  As explained below, the Board finds that from October 4, 2005, the day following separation, the evidence is at least evenly balanced as to whether the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert").  A TDIU from October 4, 2005 is warranted.  The Veteran has been unemployed since separation in October 2005. During military service, he had occupational experience as a welder. He has a high school diploma and completed some college coursework. As to the non-economic TDIU component of physical capability in Ray, supra, the functional impairment beginning October 4, 2005 from the service-connected cervical strain, thoracolumbar strain, left shoulder, right knee, left knee, right ankle, left ankle and right shoulder disabilities is sufficient to show occupational impairment affecting physical occupational tasks, such standing, walking, lifting and general endurance for physical activity. This physical occupational impairment is outlined by the Court in Ray in determining whether the Veteran can secure and follow a substantially gainful occupation. Ray, 31 Vet. App. at 73. The Board notes the reports that the Veteran engaged in boxing as a recreational activity, which appear inconsistent with significant orthopedic disability. The record is unclear as to exact nature and intensity of the boxing activities. With this vagueness, the Board does not find these reports to undermine a finding of significant physical occupational impairment. Moreover, although not controlling, the February 2010 SSA decision determined that the Veteran’s back disability had been disabling from October 4, 2005. See Anderson v. Brown, 5 Vet. App. 347, 354 (1993) (although SSA disability findings are not binding on the Board, they are at a minimum evidence which cannot be ignored, and if they are not accepted, the Board must explain its reasons for so finding). The is no evidence directly conflicting with this SSA determination. Thus, the SSA determination is probative evidence that the service-connected thoracolumbar strain, in addition to the other musculoskeletal disabilities, precluded physical labor from October 4, 2005. Given the above, the Board finds that from October 4, 2005, the Veteran has physical limitations due to service-connected disabilities that preclude physical labor. As to the non-economic mental capability in Ray, supra., the Veteran’s service-connected depression not otherwise specified, anxiety, poor sleep and anger management problems (depression disability) poses mental impairment. VA treatment records from 2006 include reports about severe anhedonia along with concentration difficulties as part of the Veteran’s service-connected depression disability picture. The Veteran was unsuccessful at school due to associated psychiatric symptoms. The Board finds that from October 4, 2005, the Veteran has mental limitations due to the service-connected depression disability that significantly interfered with his ability to securing work consistent with his education and occupational experience. Ray, 31 Vet. App. at 73.; see also Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). (Continued on the next page)   For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation from October 5, 2005 to April 18, 2007. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from October 4, 2005 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.