Citation Nr: 21004044 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 08-24 142 DATE: January 25, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from July 2, 2010 to February 27, 2014 is granted. FINDING OF FACT The service-connected back and shoulder disabilities were of sufficient severity to preclude substantially gainful employment from July 2, 2010 to February 27, 2014. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU are met from July 2, 2010 to February 27, 2014. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from July 1972 to January 1993. The matter is on appeal from a March 2007 rating decision. In May 2010, the Veteran testified at a Travel Board hearing before the undersigned. In the June 2019 decision, the Board denied a TDIU from July 2, 2010 to February 27, 2014. The Veteran appealed this portion of the Board's decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). The Board's decision was vacated pursuant to an August 2020 Joint Motion for Remand (Joint Motion or JMR) on the bases that the Board did not sufficiently analyze whether the Veteran was capable of the physical and mental acts required by substantially gainful employment, did not adequately explain the determination that the Veteran can perform sedentary employment in light of his work and education history, did not sufficiently consider the Veteran’s educational and occupational background in relation to the service-connected disabilities, and did not address a determination by the Social Security Administration that the Veteran had been disabled since July 2, 2010 primarily due to a (service-connected) back disorder and (service-connected) left shoulder arthritis. The case now returns to the Board. TDIU Legal Criteria Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. A veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran’s employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. 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 is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU Analysis In this case, the Veteran contends that he has been unemployable due to the service-connected back, sinus, and bilateral shoulder disabilities and bilateral epididymal cysts during the rating period from July 2, 2010 to February 27, 2014 (the date from which a TDIU has already been granted). The Veteran has reported that he last worked full-time in July 2010, has two years of college education, and has past relevant work experience as an inventory control specialist for a city government. For the TDIU rating period from July 2, 2010 to February 27, 2014, the service-connected disabilities are a back disability, rated at 10 percent; right shoulder disability, rated at 20 percent; bilateral epididymal cysts, rated at 20 percent; left shoulder impingement syndrome, rated at 10 percent; and chronic maxillary sinusitis/rhinitis, rated at 10 percent. The combined disability rating, after consideration of the bilateral factor, is 60 percent from July 2, 2010 to February 27, 2014. Because there are two or more service-connected disabilities, but no disability is rated at 40 percent or higher during the period, and the combined rating is not 70 percent or higher for the period, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are not met. Although the service-connected disabilities have not met the threshold percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) for the TDIU rating period on appeal, he may otherwise be entitled to a TDIU under 38 C.F.R. § 4.16(b) for the period if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. 38 C.F.R. § 4.16(b). VA regulations provide that, where a veteran is unemployable by reason of service-connected disabilities but fails to meet the combined rating percentage standards under 38 C.F.R. § 4.16(a), the case must be submitted for consideration of a TDIU under the provisions of 38 C.F.R. § 4.16(b). Such consideration (adjudication) by the VA Compensation Service Director was accomplished in December 2018, so the Board may now proceed to evaluate whether a TDIU is warranted under 38 C.F.R. § 4.16(b) on the merits. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the service-connected back and shoulder disabilities were of sufficient severity and impairment so as to preclude substantially gainful employment for the period from July 2, 2010 to February 27, 2014. Throughout this period, the symptoms and functional impairment associated with the service-connected shoulder disabilities caused difficulty lifting overhead, difficulty lifting 20 pounds or more due to shoulder pain, and limited arm motion. The service-connected back disability was manifested by recurrent back pain with mild limitation of thoracolumbar spine, muscle spasm, and intermittently abnormal gait, so that the Veteran would be unable to perform heavy lifting, weight-bearing more than 30 minutes, and repetitive bending. SSA disability records reveal that the Veteran reported that his position of inventory control specialist required that he check stock levels, reorder inventory stock, control the disposal of damaged and outdated inventory, process vendors invoices for payment, and maintain the warehouses and warehouse yard. The Veteran reported that he manually lifted weights up to 15 pounds and used a fork-lift to lift heavier objects such as large plastic pipes and metal parts. He reported that work duties, in pertinent part, required that he walk approximately 4.5 hours a day, stand for approximately 4.5 hours a day, and reach for approximately 3.5 hours a day. There is no indication in the record that the Veteran’s account of his work duties as an inventory control specialist is not credible. In this case, the evidence shows that the Veteran has two years of college education and his past work experience as an inventory control specialist involved prolonged sitting, prolonged standing, and some lifting. Because the Veteran experiences difficulty with heavy lifting, weight-bearing more than 30 minutes, and repetitive bending due to the service-connected back disability, and difficulty lifting overhead, difficulty lifting 20 pounds or more, and limited arm motion due to the service-connected bilateral shoulder disabilities, the Board finds that the Veteran would have significant difficulty performing the inventory control specialist work duties during the portion of the TDIU rating period from July 2, 2010 to February 27, 2014. Consistent with this finding, the Social Security Administration (SSA) determined that the Veteran had been disabled since July 2, 2010 and awarded disability benefits with a primary diagnosis of a (service-connected) back disorder and secondary diagnosis of (service-connected) left shoulder arthritis. See August 2010SSA Disability Determination and Transmittal. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected disabilities alone are of sufficient severity so as to preclude substantially gainful employment for the TDIU rating period from July 2, 2010 to February 27, 2014; therefore, a TDIU is warranted for this period. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, 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.