Citation Nr: 21001325 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-20 555 DATE: January 7, 2021 ORDER Entitlement to a total rating based on unemployability due to service-connected disabilities for the period beginning September 17, 2020 is granted. REMANDED Entitlement a rating in excess of 20 percent for the Veteran's service-connected mechanical low back syndrome is remanded. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee is remanded. Entitlement to a total rating based on unemployability due to service-connected disabilities for the period prior to September 17, 2020 is remanded. FINDINGS OF FACT 1. For the period beginning September 17, 2020, the Veteran was in receipt of service connection for migraine headaches, evaluated as 50 percent disabling; mechanical low back syndrome, evaluated as 20 percent disabling; residuals of right knee trauma, evaluated as 10 percent disabling; left knee disorder, evaluated as 10 percent disabling; sinusitis, evaluated as 10 percent disabling; right sciatic nerve, evaluated as 10 percent disabling; left sciatic nerve, evaluated as 10 percent disabling; and gastroesophageal reflux disease, evaluated as 10 percent disabling. The Veteran’s combined disability rating from September 17, 2020 was 80 percent. 2. The Veteran last worked full-time in 2010. 3. For the period beginning September 17, 2020, the Veteran was rendered unemployable due to his service-connected disabilities. CONCLUSION OF LAW For the period beginning September 17, 2020, the criteria for entitlement to a total disability evaluation based on unemployability due to a service-connected disability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from August 1987 to July 1992. The Veteran has another issue of whether new and relevant evidence has been received to readjudicate a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). This issue will be adjudicated in a separate Board decision. This case was previously before the Board in April 2018. In November 2020, the Veteran testified at a virtual hearing before the undersigned. A transcript of the proceeding is of record 1. Entitlement to a total rating based on unemployability due to service-connected disabilities for the period beginning September 17, 2020 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 totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet. App. at 359 (citing Timmerman at 442). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the Veteran’s actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, the Board finds that the criteria for a TDIU have been met for the period beginning September 17, 2020. Since September 17, 2020, service connection was in effect for migraine headaches, evaluated as 50 percent disabling; mechanical low back syndrome, evaluated as 20 percent disabling; residuals of right knee trauma, evaluated as 10 percent disabling; left knee disorder, evaluated as 10 percent disabling; sinusitis, evaluated as 10 percent disabling; right sciatic nerve, evaluated as 10 percent disabling; left sciatic nerve, evaluated as 10 percent disabling; and gastroesophageal reflux disease, evaluated as 10 percent disabling. The Veteran’s combined disability rating beginning September 17, 2020 is 80 percent, and he has at least one disability that is evaluated as at least 40 percent disabling. Therefore, he meets the schedular criteria. See 38 C.F.R. § 4.16 (a). The Veteran claims that he is unable to work due to his service-connected disabilities. The Veteran testified that he has been unable to work since September 2010. In his February 2018 application for unemployability, the Veteran reported that he was unable to work due to his knees and back. During the Veteran’s September 2019 Back and Knee DBQ’s, the examiner noted that the Veteran was unemployed. The Veteran reported that he was unable to work due to chronic low back pain and bilateral knee pain. He used to work full time as a computer engineer/IT tech. His previous job required heavy lifting of computer equipment, running cable, moving desks, and climbing into attic spaces to run cable. The Veteran was unable to perform these tasks due to his back and knee conditions. The examiner opined that there was no functional impairment with respect to sedentary aspects of employment with reasonable accomodation, limited prolonged sitting, standing, walking, climbing and heavy lifting. The Veteran testified that he could not sit for very long and needed to stand up, but that his job required him to sit and answer students’ questions. He reported that he quit working because he could not perform the work of laying cables, climbing in attics, or sitting for longer periods answering questions. Service connection is also in effect for the Veteran’s migraines. The October 2020 examiner opined that the Veteran had very prostrating and prolonged attacks of migraines with pain productive of severe economic inadaptability. The Veteran testified that his migraines do impact his ability to work because when he gets a migraine, he has to go to sleep in a dark room. He reported that the pain is overwhelming. The Veteran’s work history shows that his prior job required both physical and sedentary aspect and that he had to quit because he could not do either. The Board acknowledges that the September 2019 Back examiner opined that Veteran could work in a sedentary position with proper accommodations, but the Veteran testified that he could not sit for long periods. Therefore, the Board finds that in resolving all doubt in the Veteran’s favor, a TDIU is warranted for the period beginning September 17, 2020. REASONS FOR REMAND 1. Entitlement a rating in excess of 20 percent for the Veteran's service-connected mechanical low back syndrome is remanded. 2. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee is remanded. During the November 2020 virtual hearing, the Veteran testified that his service-connected back and right knee disabilities had worsened since the last examination provided to the Veteran. The Board also notes that September 2019 examiner did not state at what degree pain began during range of motion testing of the back and the right knee. For these reasons, a remand is needed so that the Veteran can be provided an examination that considers current symptomology of his back and right knee as well as at which degree pain begins. 3. Entitlement to a total rating based on unemployability due to service-connected disabilities for the period prior to September 17, 2020 is remanded. Prior to September 17, 2020, the Veteran’s combined evaluation does not meet the schedular requirement under 38 C.F.R. § 4.16 (a). For the period prior to September 17, 2020, the Veteran’s combined evaluation for eight service-connected disabilities is 60 percent. In this remand, the issues of higher evaluations for the back and right knee are being remanded for updated examinations. Therefore, the Veteran’s combined disability evaluation may change. As such, the Veteran’s TDIU application and his claims for higher evaluations for the back and the right knee are inextricably intertwined, and therefore will be addressed together. Harris v. Derwinski, 1 Vet. App. 180 (1991). If the assigned evaluation after examination of his back disability and his right knee disability still do not allow for his service-connected disabilities to meet the schedular requirement, the Veteran’s claim for TDIU should be referred to VA’s Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected mechanical low back syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Please provide at what degree pain begins. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Please provide at what degree pain begins. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. If the Veteran’s service-connected back and right knee disabilities do not meet the schedular requirements for TDIU for the period prior to September 17, 2020 after evaluations are assigned for the back and right knee disabilities, refer the Veteran’s claim for entitlement to TDIU for the period prior to September 17, 2020 to VA’s Director of Compensation Service for extraschedular consideration. 4. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.