Citation Nr: 21004763 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-20 530 DATE: January 28, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted effective April 10, 2017. FINDING OF FACT 1. The Veteran filed a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) on April 10, 2017. 2. Since April 10, 2017, the Veteran’s service-connected disabilities have had a combined rating of 80 percent, with her service-connected musculoskeletal disabilities, which constitute a single disability for TDIU purposes, having a combined rating in excess of 40 percent. 3. The Veteran’s service-connected bilateral knee disabilities, radiculopathy of the bilateral lower extremities, and low back disability have prevented her from obtaining or maintaining substantially gainful employment consistent with her employment experience and vocational attainment. CONCLUSION OF LAW The criteria for TDIU on a schedular basis have been met effective April 10, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1976 to February 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is of record. TDIU A. Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, 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 effect of combinations of disability. Id. 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. Although the Board must fully consider “the effect of combinations of disability” in its determination, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.1 (a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found unemployable due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). B. Analysis The Veteran filed a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) on April 10, 2017. Since that date, the percentage requirements for schedular TDIU have been met, as her service-connected musculoskeletal disabilities, which constitute a single disability for TDIU purposes, have had a combined rating of 60 percent, and the combined rating of all her service-connected disabilities has been at least 80 percent. See 38 C.F.R. § 4.16(a). In this regard, during the period under review, service connection has been established for left knee limitation of extension—rated as 30 percent disabling— and limitation of flexion—rated as 10 percent disabling—associated with degenerative arthritis, status post meniscal repair; instability of the left knee, rated as 10 percent disabling; right knee osteoarthritis, rated as 10 percent disabling; anterolisthesis, L5, with degenerative disc disease and arthritis of the lumbar spine with intervertebral disc syndrome (lumbar spine disability), rated as 20 percent disabling; right lower extremity radiculopathy involving the sciatic nerve associated with the lumbar spine disability, rated as 20 percent disabling; left lower extremity radiculopathy involving the sciatic nerve associated with the lumbar spine disability, rated as 20 percent disabling; and left lower extremity radiculopathy involving the femoral nerve associated with the lumbar spine disability, rated as 10 percent disabling from October 19, 2016, as 0 percent disabling from April 29, 2017, and as 20 percent disabling from August 1, 2020. In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that the phrase “unable to secure and follow a substantially gainful occupation” in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component “simply 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.” 31 Vet. App. 58, 72-73 (2019). As for the “noneconomic component,” the Court held that this refers to the individual claimant’s “ability to secure or follow” an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran’s occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a “checklist that must be completely run through in every case,” and that any factor need only be discussed if the evidence raises it as an issue. Id. Here, the economic component is clearly met, as records from the Social Security Administration (SSA) show that the Veteran has not worked since February 2016, and therefore has not worked during the period under review. The Board note that a September 2016 private treatment record reflects that she was focused on starting a business to make women’s shirts. However, the record does not indicate that this enterprise has constituted more than marginal employment in terms of any income realized from it, or the amount of work or hours involved. See 38 C.F.R. § 4.16(a); Ray, 31 Vet. App. 72-73. It thus does not alter the Board’s conclusion that the Veteran has not engaged in substantially gainful employment since April 10, 2017. See id. As to the noneconomic component, the Board finds that the Veteran’s service-connected disabilities, without regard to other factors, have been sufficiently disabling as to render her unable to obtain or maintain substantially gainful employment in light of her occupational history, education, skill, and training, for the reasons that follow. The Veteran last worked as a ticket taker from 2007 to 2016, stopping due to bilateral knee pain. See April 2017 VA Form 21-8940; November 2019 Hearing Transcript. According to a March 2018 SSA decision, the Veteran testified at an SSA hearing that this job involved cleaning turnstiles and chairs, stocking park maps, greeting guests, scanning tickets, and verifying annual passes. The Veteran has stated that prior to that time she worked at the post office, which also required prolonged standing. See November 2019 Hearing Transcript With regard to her educational background, the Veteran’s April 2017 VA Form 29-8940 reflects that she completed three years of college. In a February 2009 VA Form 21-9840, she stated that she also had a degree in mechanical design. At the November 2029 hearing, the Veteran testified that she had an Associate of Science (A.S.) degree in mechanical design engineering. The evidence does not show that the Veteran ever worked in a job involving skills relevant to that degree. The record shows that the Veteran’s service-connected disabilities have caused significant functional impairment due to pain, including with respect to walking, standing, and sitting for long periods. In her May 2016 application for SSA disability benefits, the Veteran wrote that pain in her knees made it difficult to stand, and pain in her back made it difficult to sit for a long time. In response to the question asking her to describe how her symptoms prevented her from carrying out a normal workday, she wrote, in part, that she had very severe pain in her back and knees. She was able to walk less than half a mile, and would be in severe pain when she walked any distance. She could not go grocery shopping without someone accompanying her, and her husband had to do most of the housework. With regard to the Veteran’s service-connected bilateral knee disabilities, a June 2016 private x-ray study showed moderate to severe osteoarthritis of both knees. An April 2017 VA knee examination report reflects that the Veteran’s knee pain made it difficult to walk, climb stairs, stand, squat, and bend. The examiner found that the Veteran’s knee disabilities caused inability to do any prolonged walking— which the examiner specified would be more than fifteen minutes—standing, weightbearing, and climbing stairs. In a February 2018 VA examination report, the examiner stated that with regard to functional impact, the Veteran’s knee disabilities caused difficulty with prolonged standing and prolonged walking in an occupational setting, but would not cause functional limitation in sedentary employment. The August 2020 VA examination report similarly reflects the examiner’s finding that the Veteran was unable to stand and walk for prolonged periods due to her knee disabilities. With regard to the Veteran’s low back disability, a November 2016 VA back examination report reflects a diagnosis of anterolisthesis at L5, degenerative disc disease and arthritis of the lumbar spine, with intervertebral disc syndrome. The examiner stated that the Veteran’s low back disability did not cause functional impairment, without explanation. An April 2017 VA back examination report reflects that with regard to functional impact, the examiner found that the Veteran’s back disability caused difficulty with prolonged sitting, walking, carrying, lifting, and driving. The August 2020 VA examination report reflects that the Veteran’s back pain had been worsening over the years. It was now constant and radiated down both legs. The pain was a constant 8 out of 10 in severity, and was made worse with prolonged standing and walking. With regard to functional impact, the examiner found that the Veteran was only able to perform sedentary work due being unable to ambulate without the use of a walker, and being unable to stand or walk for prolonged periods. The November 2020 VA examination report reflects that the Veteran stated that her ability to stand was limited to less than ten minutes, she could not sit for a long time, and relied on her husband to do basic housework, laundry, and cooking. With regard to the Veteran’s radiculopathy, a November 2017 VA examination report reflects that the Veteran had difficulty with standing and walking more than ten minutes. She had recently acquired a walker for ambulation due to numbness, tingling sensations, and pain in her bilateral lower extremities. A February 2018 VA examination report reflects that the Veteran used a walker on a constant basis. The examiner found that the Veteran’s radiculopathy caused difficulty with prolonged standing and prolonged walking in an occupational setting. There was no functional limitation with respect to sedentary employment. In a July 2018 VA examination report, the examiner found that with respect to functional impact, the Veteran’s radiculopathy caused difficulty with balancing, prolonged standing, and prolonged walking in an occupational setting. There was no functional impact with regard to sedentary employment. In a May 2019 VA neurology consultation record, the treating neurologist stated that the combination of the Veteran’s extremity pain and sensory loss had interfered with her ability to ambulate and to function with regard to routine activities. It also limited her ability to function in a working environment. The VA treatment records reflect that in December 2017, the Veteran was seen for a kinesiotherapy consultation to assess her occupational functioning capacity. The kinesiotherapist found that the Veteran’s low back pain and knee pain caused difficulty with bending, squatting, and kneeling. With regard to the ability to sit, the therapist found that the Veteran could sit in a working position at a desk or table for fifteen minutes before needing to stand or walk about. She would need to stand for less than fifteen minutes before returning to a seated position. The total cumulative sitting the Veteran would be able to do during an 8-hour workday would be three to four hours. The total cumulative standing or walking about would be two to three hours. It was noted that the Veteran used a walker for ambulating. In a March 2018 decision, SSA found the Veteran to be disabled for SSA purposes since February 2016 due to disabilities including peripheral neuropathy of the lower extremities, disability of the lumbar spine, and osteoarthritis of the bilateral knees, as well as a number of other nonservice-connected disabilities such as deep vein thrombosis of the lower extremities and reflex sympathetic dystrophy (pain syndrome) in the left (non-dominant) hand. The Veteran’s age was also a factor in the determination. The Board finds SSA’s decision has some, but limited, probative value, as it is based partly on factors that VA cannot consider in determining entitlement to TDIU, such as the Veteran’s age and nonservice-connected disabilities. The Board notes that at the November 2019 hearing before the undersigned, the Veteran was observed using a walker for ambulation. The VA examiners generally found that the Veteran’s service-connected disabilities limited her to sedentary employment, but did not prevent sedentary employment. they did not address the Veteran’s difficulties with prolonged sitting due to her back disability. The November 2017 VA occupational functioning assessment by the kinesiotherapist reflects a finding that the Veteran’s ability to sit during a regular 8-hour workday would be limited to three to four hours. The assessments of the Veteran’s occupational functioning in the VA examination reports also did not consider the combined impact of the Veteran’s service-connected disabilities, including the effects of chronic pain. While the Veteran has some college level education, including an associate degree in mechanical design engineering, her most recent employment, which she held over a period of about ten years, and perhaps longer, involved prolonged standing with some bending and ambulation. She discontinued working due to her knee disabilities. The record does not show that her occupational history has included sedentary work. In light of that occupational background, the obvious severity of the Veteran’s service-connected disabilities, which require use of a walker for ambulation, and the fact that such disabilities not only restrict her occupational functioning to sedentary work—as found in the VA examination reports—but also cause substantial limitations in her ability to sit for prolonged periods, the Board finds that the evidence is at least in equipoise as to whether the combined impact of her service-connected disabilities produce unemployability. (Continued on next page)   Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for TDIU have been satisfied effective April 10, 2017. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.