Citation Nr: 21003198 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 10-24 049 DATE: January 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to October 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in October 2014 and May 2016 for a Board hearing. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. This matter was also remanded in August 2017, June 2018, and February 2020 as inextricably intertwined with the other issues on appeal. As the other issues on appeal have been resolved in interim rating decisions and Board decisions, the issue remaining on appeal is entitlement to TDIU. Entitlement to a total disability rating based on individual unemployability In a January 2011 rating decision, the RO found that the issue of entitlement to a TDIU had been raised by the Veteran’s report during the November 2010 VA examination that he was unable to work as a mechanic because of his service-connected knee disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that he is unable to work due to service-connected adjustment disorder, low back pain, right ankle pain, and bilateral knee pain. He further contends that he last worked full time in September 2010, but he did not become unable to work until November 23, 2014. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is 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 an additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is 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 an additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). Here, the Veteran’s service-connected disabilities meet the schedular criteria set forth in § 4.16(a). The Veteran is rated as follows: 50 percent disabled for chronic adjustment disorder; 20 percent disabled for lumbar spine degenerative arthritis effective December 17, 2008 and 40 percent effective September 4, 2020; 10 percent disabled for right knee chondromalacia; 10 percent disabled for left knee chondromalacia (excluding a period of temporary total disability from June 9, 2010 to August 1, 2010); and 10 percent disabled for left leg radiculopathy effective September 4, 2020. His combined rating is 70 percent effective March 25, 2010 (excluding a period of temporary total disability from June 9, 2010 to August 1, 2010), and 80 percent effective September 4, 2020. The Veteran contends he has been forced to take lower paying and seasonal jobs, has been fired from jobs and has failed schooling attempts due to his service-connected disabilities. See October 2011 Notice of Disagreement; November 2011 Substantive Appeal. The Veteran also contends his current employer has made several accommodations for his physical limitations. See April 2017 Board Hearing Transcript. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran’s earned 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 established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The December 2014 VA 21-8940 and 21-4138 forms reflect part-time work as a bouncer at a bar from June 2009 to September 2010 and at a different bar from September 2010 to January 2014. Both of those positions earned $500 per week or less, which is below the annual poverty thresholds for those years. Vocational Rehabilitation and Education records indicate that the Veteran was working full-time earning $1,280 per month answering phones for an insurance company in December 2010. See August 2011 Administrative Review. At the April 2011 RO hearing the Veteran reported earning $8.00 per hour. The September 2011 VA 646 indicated that he was working 20-24 hours per week at this job but did not indicate when he reduced his hours to part-time. Further, in an October 2011 Notice of Disagreement, the Veteran indicated he was fired from that job due to his performance. Additionally, multiple VA 21-8940 and 21-4138 forms received since December 2014 indicate the Veteran was employed in seasonal work as a truck driver with the same company from April to November every year from 2014 to 2020. His earnings ranged from approximately $21,000 per year to almost $48,000 per year, significantly higher than the poverty threshold every year since 2014. Though the Veteran testified at the April 2017 Board hearing that this employer made accommodations due to his disabilities, this employer indicated that no concessions were made to the Veteran because of his disabilities. See, e.g., January 2015 and October 2020 VA 21-4192. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran was engaged in marginal work prior to April 2014 as his earnings were below the poverty thresholds for those years. 38 C.F.R. § 4.16(a). Thereafter, though seasonal, the Veteran’s employment was not marginal based on earnings or on a facts found basis; accordingly, this work constituted substantially gainful employment. Id. Thus, the remaining question for the Board is whether the Veteran’s multiple disabilities precluded him from obtaining or engaging in substantially gainful employment prior to April 2014. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board notes that the Veteran was not service connected for left leg radiculopathy until September 4, 2020; therefore, this condition cannot be considered in addressing entitlement to TDIU for the period prior to April 2014. In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16(a), 4.19; Faust v. West, 13 Vet. App. 342 (2000). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, while a VA examiner’s opinion is not dispositive, the observations of the examiner regarding functional impairment due to the service-connected disability goes to the question of physical or mental limitations that may impact a veteran’s ability to obtain and maintain employment. The Board finds the preponderance of the evidence is against a finding that the Veteran’s disabilities preclude him from obtaining or engaging in substantially gainful employment at any time during the appeal period. Regarding the Veteran’s chronic adjustment disorder, three VA examinations prior to April 2014 opined that this condition does not preclude all work. The November 2010 VA examiner opined that, though it is impossible to separate the effects of his adjustment disorder and his nonservice-connected personality disorder, these conditions have caused moderate social and moderate occupational dysfunction. The February 2011 VA examiner stated that the Veteran’s chronic adjustment disorder causes moderate occupational impairment in the form of difficulty with the stress of work as well as difficulty in regular attendance. It does not, in and of itself, cause unemployability in all fields of labor. Additionally, the March 2012 VA examiner opined that the Veteran’s adjustment disorder is not of a severity to preclude work that does not entail significant interpersonal interaction or involved prolonged concentration or attention to detail. Most recently, the September 2020 VA examiner opined that the Veteran has difficulty attending to the task at hand, maintaining concentration and focus on work over time, functioning around other people and as a team member and sustaining energy and motivation to complete assignments at work. However, the Board notes that despite these conclusions, at the time of the examination the Veteran was actively employed as a truck driver and earned almost $48,000 in the prior 12 months. See October 2020 VA 21-8940; See also Faust, 13 Vet. App. at 356 (defining “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to earned annual income). Regarding his orthopedic conditions, VA examinations and VA treatment records indicate that though the Veteran has some limitations related to his ankle, knee, and back conditions, he is not precluded from all types of work. At the March 2011 VA examination the Veteran reported flares of his ankle condition caused by any repetitive use of stairs and any running-type activities but denied any problems walking or standing. Regarding his bilateral knee condition, the Veteran reported flares caused by climbing stairs, walking greater than 600 yards or standing more than 20 to 30 minutes. He cannot run, squat or kneel due to his knees, and during flares he avoids weight-bearing and occasionally needs assistance getting up from a seated position. The Veteran also reported full-time employment and being enrolled in college full-time, though he missed four days of work in the prior four months due to his conditions. He denied any other effects on his ability to do his job because it was sedentary. The examiner opined that the Veteran’s bilateral knee condition and lumbar spine condition would prohibit the Veteran from securing and maintaining substantially gainful employment in any heavy/light manual labor work, with anything that requires continuous walking/standing more than 30 minutes to an hour, lifting and carrying more than 50 pounds; repetitive bending and twisting, or climbing stairs, ladders or scaffolds. He can perform sedentary work without any limitations or restrictions. At the June 2011 VA examination the Veteran reported being employed answering phones. He was able to walk half a block and stand for five to ten minutes before he experienced ankle pain. He reported his main limitations were due to back, knee, and ankle pain. In December 2011 the Veteran reported working part-time as a bouncer, which required sitting for most of the day. He was issued a forearm crutch. See December 2011 VA treatment records. 2013 VA treatment records reflect continuing reports of ankle, knee, and back pain. In September 2013, he reported the pain greatly limits his functioning, restricts his ability to work, and makes him isolative and irritable. His physician stated that the Veteran had decreased functioning in his job performance, but that the degree to which his physical versus psychological concerns cause disruptions in his work performance was unclear. In April 2014 the Veteran reported needing an exemption to retain his commercial driver’s license (CDL) due to his diabetes, but that he did not think his knees would present an issue with driving. See April 2014 VA treatment records. In March 2015 VA treatment records the Veteran reported falls for the past three years due to tingling in his right leg causing numbness in his foot and decreased awareness of where he was stepping. He wears bilateral knee braces with limited efficacy. He reported falling 15-20 times in the past month, though his physician could not identify why he was falling as EMGs were normal, and an MRI of his back showed only a small L3-4 disc protrusion. The March 2015 VA examinations reflected reported flare-ups of bilateral knee pain with climbing stairs, walking more than 1/8th of a mile, and standing greater than approximately one hour, and an inability to run, squat or kneel due to pain. The examiner opined that the Veteran’s knee and back conditions limit his ability to perform functional movements such as squatting, kneeling, and running, climbing stairs, and to tolerate walking and standing due to an increase in pain. However, the ankle condition does not impact his ability to work. In February 2017, the Veteran presented to the VA medical center for a physical exam for his CDL. Though he reported his knees giving way three to four times per week, low back pain, and leg numbness, he had no restrictions at the time that prohibited him from driving a truck other than nonservice-connected high blood pressure. At the December 2017 VA examinations the Veteran reported constant lower back pain with a severity of 7/10 with radiation to his right buttock, flare-ups three times a week, ankle pain with a severity of 4/10, and bilateral knee pain right more than left with right sided pain of 6/10 and left sided pain of 5/10, increasing to 7-8/10. He reported flare-ups four times a week in the right ankle and three times a week in the left ankle. The Veteran reported that his ankle pain limits his walking to half a block, his back pain limits his walking and sitting, and he can only carry objects weighing less than 40 pounds. The examiner opined that the veteran’s back condition moderately limits his bending, kneeling, standing, sitting and walking ability, but his ankle and knee conditions do not impact his ability to work. A December 2018 physical to maintain his CDL was normal. See December 2018 VA treatment records. 2019 VA treatment records reflect continued reports of back and knee pain, instability, using a single cane to walk, and multiple prior ineffective therapies. In October 2019, the Veteran reported excruciating pain in both knees, worse on the right. MRIs were normal. Physical examination showed pain, guarding, and somewhat limited range of motion. However, it was noted his issues were more of a regional hypersensitivity chronic pain syndrome, for which the Veteran is not service connected. During the August and September 2020 VA examinations the Veteran reported working as a commercial delivery truck driver and missing up to one week of work in the last 12 months. The examiner opined that the Veteran’s back and bilateral knee conditions adversely affect the ability to perform occupational tasks requiring kneeling, squatting, lifting or carrying more than 40lbs; climbing, or similar activities; and activities requiring repetitive bending, stooping, reaching, lifting or carrying, and/or climbing. Due to his back condition, the Veteran would be able to exert up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. There is no adverse effect on sedentary occupational activities with reasonable accommodation for the knee and back conditions. As above, the Board notes that despite the findings of the 2020 VA examinations regarding Veterans physical and psychiatric conditions, the Veteran has been actively employed as a truck driver since 2014 and earned almost $48,000 since October 2019. See October 2020 VA 21-8940. Based on the foregoing, the Board finds that the evidence strongly supports that the Veteran’s service-connected disabilities do not physically or mentally preclude him from performing sedentary work. In a recent decision the U.S. Court of Appeals for Veterans Claims (Court) noted that VA has not explicitly defined the meaning of “sedentary employment.” Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.” Id. at 149-50. Therefore, consistent with the Court’s holding in Withers, the Board has considered how the Veteran’s education, training, and work history factor into his ability to perform employment. Id. at 150-51. The evidence shows the Veteran is currently employed in a position requiring sitting for the majority of the day and does not require the Veteran to lift heavy objects or interact with others on a regular basis. The Veteran has maintained this employment since 2014. This employment provides an annual income that exceeds the poverty threshold for one person. There is no indication that the Veteran’s service-connected disabilities caused more severe limitations prior to April 2014; indeed, the most recent VA examinations and treatment records indicate greater work-related limitations than earlier VA examinations. Accordingly, the Board finds that the evidence of record does not indicate that TDIU is warranted. In sum, the record does not reflect any factors which place this Veteran’s case in a different category than other veterans with equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Considering the VA examinations of record and the discussion of symptomology contained therein, VA treatment records, and evidence of the Veteran’s current employment, the Board finds the evidence weighs against a finding that the service-connected disabilities of chronic adjustment disorder, lumbar spine degenerative arthritis, bilateral knee chondromalacia, and left leg radiculopathy prevent substantially gainful employment. Thus, the claim must be denied. 38 C.F.R. § 3.321; 3.40; 4.15; 4.16; 4.18; 4.19. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.