Citation Nr: 21002966 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 08-01 742 DATE: January 19, 2021 ORDER As of July 12, 1996, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all doubt in the Veteran’s favor, her service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation consistent with her education and work history as of July 12, 1996. CONCLUSION OF LAW As of July 12, 1996, the criteria for a TDIU 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 1986 to October 1994. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2006 and August 2006 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office, which granted a TDIU as of June 29, 2005, and granted service connection for an acquired psychiatric disorder as of July 12, 1996, respectively. In this regard, the Board previously found that the Veteran’s claim for a TDIU prior to June 29, 2005, was part and parcel of her claim for a higher initial rating for her acquired psychiatric disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the course of the appeal, a 100 percent rating for the Veteran’s acquired psychiatric disorder and entitlement to special monthly compensation (SMC) at the housebound rate was awarded as of May 10, 2001, thereby rendering the claim for a TDIU as of such date moot. However, entitlement to a TDIU prior to such date remained viable on appeal. In May 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the Agency of Original Jurisdiction (AOJ) and, in April 2012, she testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2012 and June 2015, the Board remanded the issue on appeal for additional development and, in April 2017, denied entitlement to a TDIU prior to May 10, 2001. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and in July 2018, the Court granted a Joint Motion for Remand (JMR) that vacated the April 2017 Board decision. In December 2018, the Board again denied the Veteran’s claim, which she appealed to the Court. In April 2020, the Court granted a JMR that vacated the December 2018 Board decision. The case now returns for further appellate review. In December 2020, the Veteran, through her representative, submitted additional evidence for consideration in her appeal. Entitlement to a TDIU prior to May 10, 2001. 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 or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “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. 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 the Veteran’s TDIU claim stems from her claim for a higher initial rating for her service-connected acquired psychiatric disorder, the issue before the Board is entitlement to a TDIU from July 12, 1996, the date service connection for such disability was established, to May 10, 2001, the date SMC at the housebound rate was awarded. In this regard, from July 12, 1996, to May 10, 2001, the Veteran was service-connected for an acquired psychiatric disorder, evaluated as 30 percent disabling; headaches, evaluated as 10 percent disabling; status-post bunionectomy with k-wire fixation of the left 1st metatarsal phalangeal joint and arthroplasty of 2nd proximal interphalangeal joint with neuritis of toes 1 and 2 (left foot disorder), evaluated as 30 percent disabling; status-post bunionectomy with k-wire fixation of the right 1st metatarsal phalangeal joint and arthroplasty of 2nd proximal interphalangeal joint (right foot disorder), evaluated as 20 percent disabling; neuritis of toes 1 and 2 (toe disorder), evaluated as 10 percent disabling; degenerative arthritis changes in the medial compartments and femorotibial joint of the right knee (right knee disorder), evaluated as 30 percent disabling; degenerative arthritis changes in the medial compartments and femorotibial joint of the left knee (left knee disorder), evaluated as 20 percent disabling; and tympanic membrane perforation on the right (right ear drum disorder), evaluated as noncompensably disabling. As the Veteran’s left foot, right foot, right knee, and left knee disorders are all orthopedic in nature, they may be considered one disability for TDIU purposes, which results in a rating of 60 percent. Furthermore, her combined rating from July 12, 1996, to May 10, 2001, was 90 percent. Accordingly, she meets the schedular criteria for a TDIU. Turning to her education and work history, the Veteran’s DD 214 reflects that she separated from service in October 1994 and her primary specialty had been information management journeyman for the past 8 years, which included performing a variety of administrative tasks. In a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) submitted in June 2005, the Veteran reported having 3 years of college education. She indicated that she had worked 32 hours per week as a waitress in 1995 earning $600 per month. The Veteran also reported working 20 hours per week as a janitor in 1995 earning $600 per month. She described leaving employment due to anxiety and her physical condition. In a VA Form 21-8940 received in November 2015, the Veteran reported having only a high school education. She also indicated that she worked as a waitress for 20 hours a week from June 1995 to December 1995, earning $400 per month, and as a janitor for 20 hours a week from February 1996 to May 1996, earning $600 per month. In light of such, the Board finds that the Veteran’s employment during such time periods was marginal in nature. In regard to the functional impairment associated with the Veteran’s service-connected disabilities, as noted in the December 2018 decision, the Board finds that, consistent with her reports and the objective examination reports, the Veteran’s service-connected foot, knee, and toe disorders caused pain and limitation of motion, which resulted in difficulty with physical activity, which limited her ability to undertake physically demanding employment. In particular, VA examination reports dated in March 1997 indicate the Veteran experienced bilateral knee pain with walking and bending every other day, was unable to stand on her toes and wiggle her second toe, and had decreased movement in her big toe and recurrent pain and swelling. Additionally, the Veteran reported that her service-connected headache disorder resulted in throbbing pain behind her eyes several times monthly. See, e.g., VA examination (December 1996). She also indicated that her right ear drum disorder resulted in ear pain, tinnitus, and dizziness. See VA examination (May 1997). The Veteran further alleges that her psychiatric disorder resulted in symptoms of disorganization, an inability to concentrate, fatigue, anxiety, crying spells, depression, forgetfulness, weakness, dizziness, and tremors particularly when under stress. She described episodes of difficulty arising from bed with variable sleep, and feelings of low self-esteem, insecurity, and discomfort with authority figures. The Veteran’s mother described her as being unable to function since her military discharge with symptomatology of headaches, depression, memory impairment and appearing as if in a daze. The Veteran was generally described as being in a “very bad” condition. In this regard, an October 1996 psychological summary completed by a VA psychologist indicates the Veteran consistently reported frequent headaches, memory impairment, intrusive thoughts, and depressive mood swings, with frequent crying spells “because of her inability to function as she once did.” Additionally, at a December 1996 VA examination, the Veteran reported that she experienced headaches almost every other day, which appeared to be related to stress. A psychological evaluation dated that same month shows the Veteran reported problems with her level of functioning in that she was always stressed out, experienced mood swings, and sometimes felt sad and very scared. However, the VA examiner found she was alert, oriented, cognitively intact, and capable of managing her benefit payments. Furthermore, following a review of the evidence in February 2013, a VA physician found there was no objective evidence in the Veteran’s service treatment records that her medical or mental health issues impaired her work ability prior to May 10, 2001. Rather, the objective evidence indicated she was capable of substantially gainful employment between 1996 to 2001 in at least sedentary employment activity consistent with her prior administrative job experience. However, the VA physician also noted that physically active employment would have been limited due to occasional flares of back pain and difficulty with stairs/stooping due to both her back condition and knee condition. In contrast, the Social Security Administration (SSA) found the Veteran to be totally and permanently disabled under Social Security Laws and Regulations due to a primary disability of affective/mood disorders and a secondary disabilities of muscle ligament and fascia disorders as of June 1996. However, the Board is not bound by SSA’s findings, and a review of the administrative decision reflects that the SSA examiner construed portions of the AOJ’s February 2006 decision as purportedly “declaring the [c]laimant disabled;” however, such decision only assigned an initial 30 percent rating for the Veteran’s acquired psychiatric disorder. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); Martin v. Brown, 4 Vet. App. 136, 140 (1993). Nonetheless, a private vocational consultant, K.P., opined in an October 2020 Vocational Assessment that the Veteran’s records were consistent with an individual who was disabled and more likely than not unable to secure and follow substantially gainful employment, including sedentary unskilled work, as a result of her service-connected acquired psychiatric disorder, headaches, status/post bunionectomy with k-wire fixation of the bilateral first metatarsal phalangeal joints and arthroplasty of the secondary proximal interphalangeal joints, and degenerative arthritis changes in the bilateral knees since at least 1996. Specifically, K.P. found the Veteran’s limitations in standing and walking for prolonged periods of time due to her service-connected bilateral knee and feet conditions were inconsistent with the exertional demands of even sedentary employment. In addition, K.P. asserted the Veteran’s non-exertional limitations related to her service-connected acquired psychiatric disorder and headaches at least as likely as not prevented her from securing and following substantially gainful employment since at least July 1996. In this regard, K.P. opined such limitations would render her unable to perform even the basic requirements of all competitive work on a sustained basis. K.P. further found the Veteran suffered from severe deficits in her ability to maintain concentration, persistence, and pace that precluded her from performing work for any substantial amount of time. As a result of excessive off-task behavior, the Veteran would at least as likely as not be unable to produce a certain minimum amount of work each day, rendering her an underproductive and unreliable employee. Moreover, K.P. opined the limitations from her service-connected conditions would preclude the Veteran from applying any previously learned skills to new job tasks at the sedentary exertional level. Additionally, her difficulties concentrating due to psychiatric symptoms and headaches would at least as likely as not cause her to have difficulty learning and retaining new work tasks or skills without redirection and supervision. Based on the above, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation consistent with her education and work history as of July 12, 1996. Thus, the Board resolves all doubt in her favor and finds that, as of such date, her acquired psychiatric disorder and headaches resulted in significant impairment in her occupational functioning and, when combined with the functional impact of her service-connected physical disabilities, rendered her unemployable. Thus, a TDIU as of July 12, 1996, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3., 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.