Citation Nr: 21000952 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 05-07 100 DATE: January 6, 2021 ORDER For the entire appeal period stemming from the Veteran’s June 25, 2004 claim, a total disability rating based on individual unemployability (TDIU) due to service-connected degenerative disc disease of the lumbar spine with broad based bulge, L5-S1, (DDD) is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected DDD renders him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the entire appeal period stemming from his June 25, 2004, claim. CONCLUSION OF LAW For the entire appeal period stemming from the Veteran’s June 25, 2004, claim, the criteria for a TDIU due to service-connected DDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to September 1984 with additional service in the Naval Reserve from January 1990 to October 1993 and the Florida Air National Guard from September 1998 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2004 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, the Veteran testified at a Board hearing before a Veterans Law Judge who has since left her employment at the Board. Thus, in May 2019, he testified at another Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the November 2012 supplemental statement of the case. 38 C.F.R. § 20.1305(c). Further, the undersigned held the record open after the hearing for the submission of additional evidence, which was received in August 2019, and the Veteran waived AOJ consideration of all evidence of record in August 2020. Id. In October 2008, September 2011, and April 2016, the Board remanded the appeal for additional development and it now returns for further appellate consideration. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay and profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before.” In other words, “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In regard to determining whether a protected work environment exists, the United States Court of Appeals for Veterans Claims (Court) has indicated that factors to consider may include the “magnitude of the veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Additionally, in Judge Lance’s concurring opinion, it was noted that where a veteran’s disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Id. at 396. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include 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 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. As an initial matter, the Board notes that the Veteran meets the schedular threshold for consideration of a TDIU for the entire appeal period stemming from his June 24, 2004, claim. Specifically, since such date, he has been service-connected for DDD, evaluated as 60 percent disabling and, as of November 19, 2018, he has been service-connected for right lower extremity (RLE) radiculopathy, evaluated as 10 percent disabling. However, the Board notes that the Veteran has not been service-connected for melanoma of the left shoulder, right and left sides of the brain, and right lung and/or any residuals from such disorder. Thus, while a review of the evidence of record indicates that the Veteran is substantially mentally and physically impaired due to such disorder, such may not be considered in determining whether he is entitled to a TDIU. Rather, the Board must determine if Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and work history due only to his service-connected DDD and, as of November 19, 2018, RLE radiculopathy. In this regard, in his July 2004 application for a TDIU (VA Form 21-8940), the Veteran reported that he had a high school degree and had completed one year of college, described as technical/military school. He also indicated that he took courses to obtain an airframe and powerplant license (A&P license), but did not complete them as it could not “mentally or physically do it.” He also noted that he had a commercial driver’s license. He reported that he last worked full time in June 2001 as a sheet metal mechanic, but served in the Florida Air National Guard until September 2002 as a F-15 mechanic. The Board notes that evidence prior to the appeal period reveals that the Veteran was having issues due to his back disability while working. Specifically, during a January 2001 VA examination, he stated that he had problems with jobs and had lost jobs secondary to his back problems as he had pain during flare-ups that decreased his ability to do any type of functional work without large amounts of pain medicine. In June 2002, a note from the Veteran’s supervisor indicated that the Veteran’s duties in the repair and reclamation section required heavy lifting and moderate to heavy strenuous physical exertion. He also noted that, prior to the Veteran leaving his position, he was on light duty due to medical problems and his performance had been acceptable at best. Additionally, a July 2002 VA treatment record revealed that the Veteran had been employed moving furniture, but dropped several pieces as he was unable to lift heavy objects such as sofa, beds, or couches. Furthermore, a September 2003 vocational rehabilitation counseling narrative report noted that the Veteran’s service-connected back disability resulted in limitations for strenuous activity and heavy lifting, which contributed in substantial part to his impairment of employability. During his August 2004 VA examination, the Veteran complained of a hurting pain across his lumbosacral spine that radiated down his RLE to his right heel. His back pain was intermittent and precipitated by sweeping, bending, and lifting, kneeling, sex, and prolonged sitting. He also had difficulty going to sleep at night due to back pain. The examiner opined that the Veteran’s back disability did not prevent him from working; rather, he was unemployable due to the metastatic disease and the subsequent craniotomies and radiation therapy he received to his brain. However, the examiner did not reconcile such conclusion with the remainder of the examination findings that demonstrated the aforementioned limitations due to the Veteran’s back disability. In September 2004, a request for employment information (VA Form 21-4192) from employer Tom Nauman was received. He noted that the Veteran had worked for him as a handyman on a part-time/as needed basis from July 2002 to June 2004. He also noted that the Veteran had not worked for him recently as he had not needed a handyman in the last 2 months. In his February 2007 VA Form 21-8940, the Veteran reported that he last worked as a handyman in January 2007 on a part-time basis. Subsequent VA treatment records reveal that, in December 2007, he was concerned about having to go back to work in security to pay his mortgage and, in March 2008, he reported that the most active thing he had done in the past month was yard work, which was limited due to his back injury. In June 2009, the Veteran underwent another VA examination, at which time the examiner determined that his back disability impacted his occupational activities as he had decreased mobility, problems with lifting and carrying, and pain. The examiner stated that the Veteran’s back disability should not preclude light duty or sedentary employment, but strenuous physical employment was limited. He also noted that the Veteran had moderate limitation with range of motion of the thoracolumbar spine and had limited ability to sit or stand for prolonged periods, and would require a sit/stand option with work. In November 2011, the Veteran was afforded another VA examination, at which time, the examiner noted that his back disability impacted his ability to work as the Veteran stated that such made it difficult for him to move around, walk, and do his job. However, the examiner noted that the Veteran reported working in security on and off for many years after he left active duty in 1984, did heavy sheet metal work from July 2000 to May 2001 despite his back disability, and stopped working in 2001 after he underwent surgery for metastatic melanoma to the brain due to memory, cognitive, and anger issues, which impaired his ability to work. The examiner also noted that the Veteran was independent in his self-care, house chores, yard work (mows the lawn with riding mower), and driving, although he stated he had to stop often because of his back. The examiner further opined that the Veteran’s cognitive dysfunction and labile mood would likely preclude gainful employment, but his back problems did not preclude non-strenuous or sedentary employment. Additionally, VA treatment records noted that the Veteran reported he had pain located in his lower back radiating down his right leg, and his treating clinician noted that such pain impacted his energy level/mood/coping and decreased functional status. The clinician opined that the Veteran was totally and permanently unemployable due to such service-connected disability. See July 2010, November 2010, June 2011, August 2011, October 2011, November 2011, February 2012, and May 2016 VA treatment records. A November 2018 letter from the Veteran’s VA psychologist, who treated him since May 2009, noted that the Veteran had chronic lower back pain that radiated down his right leg, which impacted his energy level/mood/coping and decreased his functional status. Thus, she opined that the Veteran was totally and permanently unemployable due to his service-connected disability. In April 2019, the Veteran underwent another VA examination, at which time, the examiner found that the Veteran’s back disability impacted his ability to work as such would limit strenuous work; however, such should not preclude light or sedentary work. He also noted that the Veteran had limitation with range of motion in the back. Additionally, at the May 2019 Board hearing, the Veteran testified that he had back pain every day, and such pain, as well as the medication he took for it, resulted in difficulty with concentrating, focus, anxiety, and fatigue. He further reported that he could not sit or stand for a prolonged period of time and had difficulty with stairs as a result of his back disability. The Veteran also indicated that his previous jobs involved physical labor or mechanical work, and he was unqualified by education and work history to perform light or sedentary work as he had not been trained in administrative or computer work. Furthermore, in August 2019, an evaluation was received from W.P., a certified rehabilitation counselor and professional vocational evaluator. She discussed that the Veteran’s employment history consisted of “medium to heavy labor.” The Veteran also stated that prior to having to stop working following his brain surgeries, his supervisors were trying to remove him for his position due to his attitude and inability to perform necessary tasks due to back pain. The Veteran also reported that he tended to avoid physical activities due to his back pain, and had to keep moving around to reduce the amount of pain he experienced and was unable to sit or stand for a long period of time. W.P. determined that, given the Veteran’s employment history of medium to heavy physical labor in the past, he would not have skills transferable from his past work to work that would be presently performed at the light to sedentary level of physical demand. Thus, based on a review of the foregoing evidence and resolving all doubt in favor of the Veteran, the Board concludes that the Veteran is entitled to a TDIU for the entire appeal period stemming from his June 25, 2004, claim. In this regard, while the Veteran reported that he worked as a handyman during the appeal period, the Board finds that such employment was marginal in nature as it was sporadic and part-time at best, and he did not earn an annual income that exceed the poverty threshold. Furthermore, the medical and lay evidence of record demonstrates that the impairment associated with the Veteran’s service-connected back disability resulted in limitations that rendered him unable to secure or follow a substantially gainful occupation consistent with his educational and work history. In this regard, his employment history consists of mostly physical labor as a heavy sheet metal mechanic and the aforementioned VA examiners found that the Veteran should avoid job duties that required strenuous work activity. Thus, while such examiners found that the Veteran would not be precluded from light and/or sedentary work, such type of position is inconsistent with the Veteran’s education and work history. Additionally, W.P., also determined that he does not have skills transferable to light or sedentary work. As discussed above, the appropriate TDIU standard is not whether a Veteran is able to obtain any employment, or to maintain marginal employment. See Moore, 1 Vet. App. at 358. Rather, the standard is whether a Veteran can obtain and maintain substantially gainful employment. Thus, resolving all doubt in the Veteran’s favor, the Board finds that his service-connected DDD rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the entire appeal period stemming from his June 25, 2004 claim. Therefore, a TDIU for the entire appeal period is warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, Associate 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.