Citation Nr: 21001848 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-20 057 DATE: January 12, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to December 19, 2016, is granted. Entitlement to TDIU for the period from December 19, 2016, to July 1, 2018, is dismissed. Entitlement to TDIU on or after July 1, 2018, is denied. FINDINGS OF FACT 1. Prior to December 19, 2016, the Veteran met the schedular criteria for TDIU, and his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. 2. Since December 19, 2016, the Veteran’s combined evaluation for his service-connected disabilities has been 100 percent. 3. For the period from December 19, 2016, to July 1, 2018, the Veteran was in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i). 4. Since July 1, 2018, the evidence shows that he is unemployable due to a combination of service-connected disabilities rather than a single disability, and he does not service-connected disabilities independently ratable at 60 percent or more that are of different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. The criteria for TDIU prior to December 19, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The appeal for the issue of entitlement to TDIU for the period from December 19, 2016, to July 1, 2018, is dismissed as moot. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). 3. The criteria for TDIU on or after July 1, 2018, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to March 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2020. A transcript is of record. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists 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, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central 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). For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Prior to December 19, 2016 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to TDIU prior to December 19, 2016. Prior to December 19, 2016, the Veteran was service-connected for degenerative disc and joint disease of the lumbar spine and intervertebral disc syndrome (IVDS) of the femoral and sciatic nerves, assigned a 40 percent evaluation; radiculopathy of the right lower extremity (sciatic nerve), assigned a 40 percent evaluation; radiculopathy of the left lower extremity (sciatic nerve), assigned a 40 percent evaluation; right hip status post prosthetic replacement, assigned a noncompensable evaluation from November 10, 2016; radiculopathy of the right lower extremity (femoral nerve), assigned a 20 percent evaluation; radiculopathy of the left lower extremity (femoral nerve), assigned a 20 percent evaluation; pilonidal cyst and infected hidradenitis, status-post excision with residual scar, assigned a 10 percent evaluation; left hip degenerative arthritis, assigned a 10 percent evaluation from November 10, 2016; right hip degenerative arthritis with limitation of adduction of the thigh, assigned a 10 percent evaluation from November 10, 2016; scar status-post lumbar laminectomy, evaluated at noncompensable; and anterior left hip scar due to left hip joint replacement surgery, evaluated at noncompensable from November 10, 2016. His combined evaluation was 90 percent. Thus, he met the schedular criteria for TDIU. The Veteran submitted a VA 21-8940 in January 2014 in which he indicated that he had last worked as a math tutor in May 2010. He reported that he had last worked full-time in January 2001 and that he became too disabled to work in December 2013. The Veteran also noted that his highest earnings were made in 2000 when he was employed as a network administrator. He indicated that he had completed four years of college and participated in vocational rehabilitation. The Veteran identified degenerative joint disease of the lumbar spine and radiculopathy as the service-connected disabilities that prevent him securing or following any substantially gainful employment. During a December 2012 mental health diagnostic interview, it was noted that the Veteran had obtained his GED after his discharge from the military and then graduated with an associate’s degree in computer programming in 1992. Over the years, he had worked in various IT jobs. The Veteran returned to school in 2004 to complete a computer science program, but he changed majors due to having chronic pain while sitting at his desk. Through vocational rehabilitation, the Veteran graduated in 2010 with a bachelor’s degree in human resource training and development and a degree in mathematics, but it was noted that he had difficulty finding a job and was not working at the time of the December 2012 interview. A January 2013 vocational rehabilitation letter indicated that the Veteran experienced ongoing pain and instability in standing or sitting for even brief periods of time that it is noticeable as he fidgets and shifts positions multiple times during a conference or case management meeting. It was noted that often forgot what was being discussed. In December 2013, future vocational rehabilitation and employment services were denied. A rehabilitation counselor stated that it was not reasonable to expect the Veteran to be able to train for or obtain a suitable job. It was noted that he was not able to complete training and education due to ongoing medical issues. The Veteran’s wife wrote to VA in April 2014 and stated that, since he had surgery to remove a cyst, he has had to lay flat on a hot pad for most of the day to give him enough relief to move around for only short periods of time. She also reported that his emotional state had declined and that he sleeps more than he is awake. In April 2014, the Veteran reported that his service-connected disabilities had worsened. He indicated that he could only sit for 10 to 15 minutes before he has to lie down to relieve increasing pain in his legs and low back. He noted that persistent sitting, such as in the car, causes low back muscle spasms, which can take two to three weeks to subside. The Veteran also discussed his medications and indicated that they cause intoxication, forgetfulness, “stupidity,” and other problems. An April 2014 response from the Social Security Administration (SSA) National Records Center reflects that the Veteran applied for disabilities benefits, but no records were obtained. In a May 2014 VA 21-4192, the Veteran wrote that he worked six and a half hours per week at his last job, which ended in July 2011. In a June 2014 mental health note, it was documented that the Veteran was “grumpy” and could not sleep at night due to pain. He slept during the day and was irritable. It was also noted that the Veteran had side effects from his medications, including sedation from Gabapentin. The impression included concentration problems secondary to his chronic pain, and it was noted that the Veteran disenrolled from school given his chronic pain and medical disability. A June 2014 VA examiner found that the Veteran had more stiffness and reaction to repetitive movements than when he was last seen by the examiner in December 2013. The June 2014 VA examiner wrote that the Veteran had not been able to continue rehabilitative education and was becoming gradually less able to do former tasks and duties. The examiner also found that the Veteran’s service-connected back disability alone impacted his ability to work in that he was not able to lift more than five to ten pounds without experiencing a flare-up, could tolerate about 100 yards, was only able to walk for two hours out of a work day, could only sit for half-hour intervals, could stand for five minutes, and would be able to sit/stand for two out of eight hours of a work day at short intervals. In a December 2014 statement, the Veteran wrote that, in September 2014, he was in bed for 14 days and could not maintain employment because of his need to lay down in order to perform light activities. He also reported that was losing his ability to write with a pen, could not stand longer than a few minutes at a time, and that sitting is impossible for more than a few minutes. In an April 2016 primary care provider note, a physician assistant wrote that the Veteran experienced chronic lower back pain, was followed by a pain clinic, and was on morphine and oxycodone. The Veteran reported an increase in his radicular symptoms, weakness of his lower left extremity, and popping pain in his left hip. In an April 2016 VA Form 9, the Veteran wrote that he worked as a math tutor usually three to four hours per week and sometimes two hours per day for two to three days a week. During that work, he was seated in a special chair provided by VA. The Veteran included his W-2 statements and indicated his belief that such work would not qualify as marginal employment. He also indicated that he re-entered a vocational rehabilitation program in January 2011, and his objective was to earn a master’s degree. His health subsequently worsened, and he was dismissed from the vocational rehabilitation program, which is why he considered developing a math tutoring service on his own. However, the plan was not successful, and he also had to close his computer consulting business and move into a small basement apartment with family because of the impact of his service-connected disabilities on the ability to make a living. The Veteran described his incapacitating episodes during which he experiences pain, spasms, partial paralysis, and radiculopathy. He indicated that he has to spend six to eight hours a day in bed removing the weight from his spine to have the ability to perform light activities for two to three hours a day. In July 2016, the Veteran’s representative wrote that he was in such pain that he cannot stand for any length of time and that the medications cause him to be forgetful and have “memory fog.” She indicated that the Veteran’s participation in a vocational rehabilitation program was discontinued because of his service-connected back issues and pain. Although he had an idea for a math tutoring program, the plan was never executed. The representative contended that the Veteran is unable to secure employment because of his limitations from his service-connected disabilities. Other medical evidence of record shows the Veteran was diagnosed with arthritis, chronic pain, and insomnia. See December 2016 private progress note. During a November 2016 diagnostic interview, it was noted that the Veteran had previously worked in computer science, but was trying to switch careers dur to having too much back pain to sit at a computer for extended periods of time. It was also noted that the Veteran was unemployed and not able to hold down a job due to his pain and limitations. During the June 2020 hearing, the Veteran testified that he last worked full time for the United States Coast Guard and subsequently worked part-time from home as a math tutor and writing software. He reported that he has a bachelor’s degree and has tried to obtain full-time work, but has been unsuccessful. The Veteran stated that he was released from vocational rehabilitation in 2012 when VA determined that he could no longer be successful in employment. He went to graduate school, trying to manage his pain for the next two years until he needed both hips replaced in 2016. The Veteran further testified that he could not continue going to classes in person, could not keep a schedule, and cannot sit through a movie due to his physical discomfort. Therefore, he does not believe that he could meet the needs of an employer. Although he attempted to attain a master’s degree through VA’s vocational rehabilitation program, he was able to only complete one semester online. He applied for the program again, but his application was denied. The Veteran did not believe that it is realistic for him to find a job, as he can only help for a few minutes around the home with tasks, such as washing dishes or doing yard work, and he stated that he can no longer perform all of his prior activities. The Board finds that the totality of the evidence demonstrates that the combined effects of the Veteran’s service-connected disabilities preclude gainful employment. He has education and training, but his service-connected disabilities have been shown to affect his overall ability to function in an occupational environment. Although medical examiners are responsible for providing a full description of the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator, Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, the Board finds that the requirements for TDIU have been met prior to December 19, 2016, and the claim is granted. On or After December 18, 2016 Since December 19, 2016, the Veteran has a combined evaluation of 100 percent. The Court in Bradley v. Peake held that a claim for a TDIU on the basis of a certain disability is not moot once a schedular 100 percent evaluation is assigned on the basis of other disabilities, as the TDIU may still form the basis for assignment of special monthly compensation (SMC) under section 1114(s). See Bradley, 22 Vet. App. at 294. 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 the TDIU rating, even where a 100 percent schedular rating has also been granted. Id. See also Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). In this case, the Veteran has already been granted SMC at the rate under 38 U.S.C. § 1114(s) from December 19, 2016, to July 1, 2018. As SMC at that rate is the only remaining benefit for which the assignment of a TDIU evaluation would be beneficial and because a TDIU evaluation is a lesser benefit than the 100 percent evaluation assigned, the TDIU claim is moot for the period from December 19, 2016, and July 1, 2018. The Board has also considered entitlement to TDIU for the period since July 1, 2018; however, the Veteran has not asserted that he is unable to work due to a single disability. Rather, the lay and medical evidence shows that he is unemployable due to a combination of his service-connected disabilities, including his lumbar spine, radiculopathy, pilonidal cyst, and hip disabilities. As noted above, he is already in receipt of a combined 100 percent evaluation, and only the grant of TDIU predicated on a single disability may form the basis for an award of special monthly compensation SMC. Moreover, the Veteran does not have service-connected disabilities independently ratable at 60 percent or more that are of different anatomical segments or bodily systems. For example, even if the Veteran were granted TDIU on the basis of his lumbar spine disability alone, he would only have a 60 percent rating if other service-connected disabilities involving the same bodily system were considered, such as radiculopathy and hip disabilities which were granted service connection as associated with the lumbar spine disability. Thus, a grant of TDIU for this period would not entitle him to SMC, and as previously noted, a TDIU evaluation is a lesser benefit than the 100 percent schedular evaluation already assigned. For these reasons, the Board finds that the Veteran is not entitled to TDIU on or after July 1, 2018. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.