Citation Nr: 21003574 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-09 816 DATE: January 22, 2021 ORDER Entitlement to a total disability evaluation due to service-connected disabilities (TDIU), effective August 25, 2007 but not earlier, is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, effective August 25, 2007 but not earlier, the Veteran’s service-connected disabilities were of such severity, frequency, or duration to result in total occupational and social impairment. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities, effective August 25, 2007 but not earlier, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102. 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training in the United States Army as a patient care specialist from November 9, 1979 to August 8, 1980. He died in January 2019. The appellant is the Veteran’s spouse, whose request for substitution was granted in February 2019. See February 27, 2019 Appeal Notification Letter. In August 2018, the Veteran testified before the undersigned Veterans Law Judge. The transcript of that proceeding has been associated with the claims file. In April 2019, the Board denied the appellant’s claim for entitlement to a TDIU prior to May 4, 2008. In January 2020, the appellant appealed the Board’s April 2019 decision to the United States Court of Appeals for Veteran’s Claims (Court), resulting in a Joint Motion for Remand (JMR). A February 2020 Court order vacated the Board decision and remanded the decision for compliance with the parties’ directives in the JMR. The JMR The parties to the JMR found that the Board had inadequately contemplated the probative weight of evidence which was favorable to the appellant’s claim. Specifically, the parties identified the Veteran’s lay statements of December 2012 and May 2016, in which the Veteran noted that he returned to work after almost three years of unemployment (April 15, 2004 to February 2007), against his doctor’s orders, because he “had no money” and “lost his home.” The parties also agreed that the Board favored the account of a January 2007 VA examiner over the hearing testimony of the Veteran. While the former opined that the Veteran was gainfully employed in construction at the time of the January 2007 examination, the Veteran testified at the August 2018 Board hearing that he had not worked in construction since December 1993. And, the parties agreed that while that Board noted that the Veteran was service connected for several disabilities (to include a 30 percent disability rating for major depressive disorder (MDD) from June 4, 2007), the Board found that there was no objective evidence indicating that the Veteran’s service-connected disabilities rendered him unable to secure substantially gainful employment other that driving a manual transmission vehicle. In so doing, according to the parties, the Board did not consider portions of a September 2008 mental health examination, in which the examiner reported that the Veteran endorsed that he “did not feel like participating and could not get himself to go, which is again part of [the Veteran’s] concern [that] if he were to try to have (sic) a job that he would not get himself to go to work because of his depression.” Here, the parties noted that the Veteran contended that his MDD was caused by a work accident, which itself was caused by the Veteran’s service-connected left knee disability. And, lastly, the parties concurred that the Board did not address a comment of a May 2006 VA examiner, who reported that the Veteran stated that “he [had] not been able to return to work since December 2005 because of his back condition.” Entitlement to a TDIU prior to May 4, 2008 The appellant, advancing past arguments of the deceased Veteran, contends that the Veteran was entitled to a grant of a TDIU from a date prior to May 4, 2008. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 3.340 (a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). However, 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 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The rating board did not refer this case for extra-schedular consideration. The issue then is whether the Veteran’s service-connected disability precluded him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”) prior to May 2008. Moore v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor, which takes this case outside the norm. 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). 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. Id. Marginal employment may also be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. As of June 4, 2007 and prior to May 4, 2008, the Veteran had the following service-connected disabilities: 1) MDD associated with degenerative joint disease and chondromalacia of the left knee at 30 percent, effective from June 4, 2007; 2) tinea versicolor at a noncompensable rating, effective from December 18, 2006; 3) lumbosacral strain at 20 percent, effective from March 17, 2006; 4) residuals subluxation of the left patella at 10 percent, effective from March 28, 1989; 5) degenerative joint disease of the left knee at 10 percent, effective from February 15, 2006; 6) tendonitis of the left elbow at 10 percent. effective from December 18, 2006; 7) left hip contusion at a noncompensable rating, effective from February 15, 2006; 8) right knee strain at a noncompensable rating, effective from June 9, 2006; 9) pseudofolliculitis barbae at a noncompensable rating, effective from December 18, 2006. The combined rating was 10 percent prior to February 2006, 30 percent thereafter until December 2006, 50 percent thereafter until May 4, 2008, and 60 percent thereafter until his death in 2019. As is relevant to the functional limitations contended by the Veteran to be the cause of unemployability, the combined rating for the left knee and hip was 10 and then 20 percent effective February 2006. Although the Veteran reported that he injured his back and neck in a workplace injury in 2004, neither back nor neck were service-connected and therefore cannot be considered. Service connection for major depressive disorder was effective June 4, 2007. Although the Veteran contends that he experienced depression that impaired his work long before it was diagnosed and granted service connection, it cannot be considered as a factor for a TDIU until after the effective date of service connection. Therefore, according to the criteria set out in 38 C.F.R. §§ 3.340, 3.341, 4.16(a), the Veteran neither met the requirements of having at least one disability rated at 60 percent or more, or at least one disability rated at 40 percent with additional disability sufficient to bring the combined evaluation to 70 percent. As the Veteran did not meet the schedular requirements for a TDIU, the only remaining question is whether the Veteran was unable to secure or follow substantially gainful occupation because of his service-connected disabilities for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16(b). The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). As noted, for the appellant to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose, supra. In an informal claim (statement) of February 2006, the Veteran stated that his increased left knee pain kept him “off from work,” highlighting his lack of mobility; difficulty traversing stairways; and increased visits to medical providers. He also indicated incidents of falling and therapy sessions several times a week. These painful symptoms, physical limitations, and need for outside medical care and therapy, according to the Veteran, created absenteeism and difficulty fulfilling the tasks of his job as a tractor-trailer driver (handling the clutch with his left foot). As the Veteran had a pending claim for an increased rating for the left knee from February 2006 and raised the issue of unemployment, the Board will examine whether is it factually ascertainable whether he was precluded from all forms of employment due to his service-connected disabilities up to one year earlier or February 2005. 38 C.F.R. § 3.400 (o) (2). Upon a May 2006 VA examination, a clinician noted that the Veteran stated that his knee “gave out” on him in December 2005. The Veteran added that he fell on his back and as a consequence he has experienced persistent lower back pain. And, the clinician indicated that the Veteran stated that he was not able to return to work since December 2005 due to this fall. Upon a January 2007 VA examination, a clinician reported that the Veteran reported that he was a driver for United Parcel Service (UPS) until April 2006. In this position, the Veteran contended that he had to shave daily; such shaving exacerbated his pseudofolliculitis barbae. This clinician wrote that the Veteran was gainfully employed in the field of construction. The Board acknowledges that other records show no construction work after 2004 but rather he was gainfully employed in transportation and freight delivery enterprises. Upon review of the medical evidence of record from February 15, 2006 through May 4, 2008, the Board observes that the Veteran complained of constant left knee pain and stiffness, including daily flare-ups that lasted 8 hours a day. He also indicated that he stopped working in December 2005 after his left knee gave out. This evidence also disclosed that the Veteran failed to report for a VA examination in October 2006. In January 2007 correspondence, the Veteran wrote that he was continuing to experience economic hardship because of his inability to continue his career as a tractor-trailer driver. The Veteran added that this was due to his service-connected and “secondary” disabilities. The Veteran noted that he still experienced swollen and painful arthritic joints, to include his left knee. In June 2007 correspondence, the Veteran wrote that due to the exacerbation of his service-connected residuals and “secondary” disabilities, he was unemployable. Moreover, the Veteran added that he lost his house of 11 years. These factors and a hernia, according to the Veteran, made him depressed. And, lastly, the Veteran wrote that VA had not provided counseling for his depression. In another piece of June 2007 correspondence, the Veteran wrote that the record clearly shows “decompensation,” resulting from his exacerbating service-connected left knee disability and other health conditions. Moreover, the Veteran indicated that he had to miss a couple days of work because of his left knee disability. The Veteran highlighted constant “wear and tear” on his left knee over many years. Thus, according to the Veteran, the medical evidence supports an extra-schedular evaluation, based on “exceptions or unusual disability picture,” due to marked interference with employment or frequent periods of hospitalization. Here, once again, the Veteran conveyed that due to the exacerbation of his service-connected disabilities, he has become unemployable. In a January 2008 lay statement (via VA Form 21-4138), the Veteran reported that he took daily medication that prevented him from driving. As such, the Veteran wrote that he must claim unemployability. To bolster this, the Veteran wrote the he can no longer drive a tractor-trailer; his left knee prevents him from changing gears and his medication prevents driving altogether. The Veteran also contended that many other physical ailments are due to his left knee disability. And, again, the Veteran mentioned the loss of his house and his depression (for which VA has not provided treatment). Upon a July 2008 VA examination, a clinician noted that the Veteran endorsed that his pseudofolliculitis barbae had worsened significantly. Upon a September 2008 VA mental health examination, a VA clinician provided a diagnosis of MDD, recurrent. According to the clinician, the Veteran had significant social impairment associated with MDD. According to the clinician, the Veteran was no longer working in his previous career as a tractor-trailer driver because of physical injuries. Subjectively, the Veteran reported that he recently completed a college degree in human resource management and would consider working in that field but was concerned that his depression would keep him from going to work daily, as it had kept him from coaching and had kept him from attending college courses (even though he did fulfill all of his degree requirements). This mental health clinician noted that the Veteran reported that he had been out of work since August 5, 2007, when he had a bad motor vehicle accident. The Veteran reported that he had worked from June 2007. Prior to June 2007, the Veteran conveyed that he had not worked since April 15, 2004 (due to a work accident that occurred at that time). As to the connection between the Veteran’s contended work-related injury in April 2004 and the Veteran’s service-connected left knee disability, the mental health clinician opined that this issue would need to be evaluated by a medical provider with expertise in orthopedics and body mechanics. In a December 2012 and May 2016 lay statements, the Veteran conveyed that he had returned to work after almost three years of unemployment (from April 15, 2004 to February 2007). The Veteran indicated that he returned to work against his doctor’s orders because of his lack of money and loss of his house. At the Board hearing, the Veteran testified that he was fired from his position as a tractor-trailer driver on April 16, 2004 because of an accident. The Veteran reported that he was restacking pallets, when his service-connected left knee gave way causing a fall. The Veteran stated that he was severely injured, but his employer did not concur and terminated his employment to avoid responsibility for the damage caused by the tractor-trailer accident. See Hearing Testimony, p. 4. Also, the Veteran testified that his formal education consisted of high school and two years of college. See id. at p. 10. And, the Veteran testified that he had not worked in construction since December 1993. See id. at p. 2. In response to the RO’s Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4142), this employer provided an altogether different account of the Veteran’s termination; according to a company official, the Veteran was terminated due to attendance problems. The response from the official neither provided information about a work accident nor any information suggestive of a left knee disability. See April 25, 2006 VA 21-4192. A review of the Veteran’s extensive Social Security Administration (SSA) records reveals that the Veteran reported that he ceased working on August 25, 2007. Further, the Veteran reported that he had completed four or more years of college in 1997. Indeed, this account of education differs markedly from the Veteran’s account of his educational credentials in hearing testimony, as noted above. These records also disclose that the Veteran had worked as a railroad supervisor from January 1982 to January 1991, in addition to his work as a tractor-trailer driver from January 1997 to August 2007. In an October itemized Statement of Earnings, SSA reported the following information for the period in question. Prior to 2004, the Veteran worked for multiple firms whose names suggest construction, maintenance, manufacturing, and freight or delivery enterprises. The Veteran earned compensation in 2004 and 2006 for work with a transportation corporations. In 2005, he earned compensation from a firm whose name did not reveal the nature of the work. In 2007, he earned compensation from a city newspaper and another transportation company. Records of Social Security earnings show some earned income in 2006 from several transportation businesses contrary to the Veteran’s report of no work from the 2004 accident to August 2007. Although the amount earned may have been somewhat limited by his medical appointments for treatment and therapy, he was also engaged in an education program leading to skills in human resources. That he could operate commercial vehicles indicated a capacity for gainful work even though he had other activities. In other portions of the SSA records, the Veteran reported a job history of working as a railroad supervisor from 1982 to 1991 and as a tractor-trailer driver from January 1997 to August 2007. Moreover, this SSA job history provided that the Veteran worked 12 hours per day, 5 days per week. He did report that he was able to drive an automobile and use public transportation. And these documents show that the Veteran sustained injuries in a motor vehicle accident while driving not caused by disabilities. The Board has carefully considered the Veteran’s lay contentions. Indeed. the Veteran is competent to report discernable symptoms, such as left knee pain, depressed feelings, and back pain. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the Veteran lacked training to render opinions as to clinical severity of orthopedic and psychological disabilities. Thus, the Veteran’s lay accounts as to the clinical severity of service-connected disabilities warrants diminished probative weight. Moreover, some of the Veteran’s lay accounts have been inconsistent with other evidence of record. Caluza v. v. Brown, 7 Vet. App. 498, 511 (1995). Here, the Board takes notice of the Veteran’s varying accounts of his educational background and employment terminations, as noted above. As such, the Board finds that the Veteran’s lay accounts are further diminished in probative weight, Based upon the evidence of record, the Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran was precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he was incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders prior to August 25, 2007, even when his disabilities are assessed in the context of factors such as his occupational background and level of education. The Veteran testified that his left knee and left hip interfered with operation of a clutch on a tractor-trailer which precluded work as a driver of that type of manual transmission vehicle. On the other hand, the record of evidence shows that the Veteran did participate in VA vocational rehabilitation training during the relevant period that would require travel to the training site and attending classes. His disabilities would not interfere with driving an automatic transmission vehicle and he in fact did work in 2006 and 2007 in transportation and newspaper delivery businesses. His experience as a construction crew supervisor and between two or four years of college education show that he had the capability to perform management and administrative work that does not require operation of a large manual transmission tractor-trailer or extended standing and walking. Here, the Board again takes note of the Veteran’s work history (as disclosed in SSA records) that revealed that he had years of professional experience as a supervisor. Indeed, the Veteran’s combination of a specialized education in human resource management and professional supervisory positions disclose that the Veteran’s education and vocational endeavors were sufficient for the Veteran to obtain and maintain substantial employment prior to August 25, 2007—considering his specific education and specific work in several professions. See Withers v. Wilkie, 30 Vet. App. 139 (2018). A supervisory position fell within the range of employable possibilities prior to August 25, 2007. The Board finds that aside from the Veteran’s subjective contentions (which focused on a lost career of driving a manual transmission tractor-trailer), there is no objective evidence indicating that the Veteran’s service-connected disabilities rendered him unable to secure all forms of substantially gainful employment prior to August 25, 2007—that is, other than driving a manual transmission vehicle. There are no indications in the record which reflect that the Veteran ever applied for workplace accommodations, as delineated in the Americans with Disabilities Act (ADA) or the Family Leave and Medical Act (FMLA), prior to May 4, 2008. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. That the Veteran’s income at times during this period was low, it is the Veteran’s capacity for full time employment that is relevant, not that he was simply not employed. While the Board acknowledges that the Veteran experience strife associated with the loss (presumably foreclosure) of his house, this fact does not bear upon the calculus of a determination of entitlement to a TDIU prior to August 25, 2007. The weight of evidence is against finding that these conditions, without more, would have precluded the Veteran from obtaining gainful employment prior to August 25, 2007, but that he was unemployable thereafter. Resolving all doubt in the Veteran’s favor and considering the inconsistencies in the Veteran’s reporting of the severity of his disability but placing greater weight on the work history and education that he reported to various sources including SSA, the Board finds that the Veteran was not employable because of his service-connected disabilities from August 25, 2007. The Board selected this date because it follows the date of service connection for depression, the date of his second serious automobile accident on August 5, 2007, and most importantly was what he reported to and was accepted as his last date of work by the Social Security Administration. The Board assigns some weight to the contention that his service-connected depression, effective in June 2007, would impede his function as both a commercial vehicle driver and in potential work using his education in human resources. Therefore, the Board finds that the Veteran’s service-connected disabilities did not prevent him from performing the physical and mental acts required by employment prior to August 25, 2007 but did so thereafter. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (citing Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Factors to be considered are the veteran’s education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). (continued next page) The Board has acknowledged and considered the Veteran’s many lay statements and lay testimony addressing his unemployability. However, the Board finds that referral of the matter to the Director of Compensation Service for consideration of a TDIU under 38 C.F.R. § 4.16(b) is not warranted as the Veteran had the capacity and was actually employed, at several clearly identified intervals, prior to August 25, 2007. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be granted in part and denied in part. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.