Citation Nr: 21061363 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 14-24 289A DATE: October 1, 2021 ORDER Entitlement to a total disability individual unemployability (TDIU) from April 5, 2012 is granted. REMANDED Entitlement to a TDIU prior to April 5, 2012 is remanded. FINDING OF FACT From April 5, 2012, the Veteran was precluded from securing and following substantially gainful employment as a result of her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU from April 5, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1996 to April 1999. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated April 2012 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. The Board notes that the issue of entitlement to a TDIU was raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) in a March 2018 remand as part of the Veteran's underlying increased ratings for her hip disabilities. In October 2019, the Board, in relevant part, denied entitlement to a TDIU. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand, vacating the part of the October 2019 Board decision that denied entitlement to a TDIU. The issue has now been returned to the Board for adjudication. The appellant testified at a September 2021 video hearing with the undersigned Veterans Law Judge. This decision is being made under the "one-touch" program as it grants the benefit sought. A transcript of the hearing will be associated with the claims file at a later time. Entitlement to a TDIU from April 5, 2012 A TDIU may be assigned 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 their service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated as at least 60-percent disabling, and if there are two or more disabilities, at least one disability must be rated as at least 40-percent disabling and there must be sufficient additional disability to bring the combined rating to at least 70 percent. Id. Service connection is currently in effect for a number of disabilities, which result in at least one disability rated as at least 40 percent disabling and a combined rating of 70 percent from April 5, 2012. Therefore, the Veteran meets the schedular requirements for entitlement to a TDIU from April 5, 2012. Entitlement to a TDIU must be based solely on the impact of the Veteran's service-connected disabilities on her ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. While the regulations do not provide a definition of "substantially gainful employment," in Faust v. West, 13 Vet. App. 342 (2000), the Court of Appeals for Veterans Claims (Court) defined "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 the Veteran actually works and without regard to the Veteran's earned annual income." Requiring a Veteran to prove that she is totally unemployable is different than requiring she prove that she cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 she can find employment. Van Hoose, 4 Vet. App. at 363. The Board finds that the competent and probative evidence supports an award for a TDIU. In the Application for Increased Compensation Based on Unemployability dated April 2018, the Veteran stated that she sought entitlement to a TDIU due to her hips and lower back/social anxiety. She wrote, "I was awarded disability for bilateral hip pain, and I have been unable to work since military service because of the chronic pain." The highest level of education the Veteran has is a high school degree. She wrote that the last time she worked full time was on April 29, 1999. The date she became too disabled to work was noted as the year 1999, the year she separated from service. She worked as a radio operator in service at that time. Her only vocational training was from the military. She had no other work experience outside of the military. In a February 2019 Mental Disorders Disability Benefits Questionnaire (DBQ), the examiner noted that, "The Veteran presented with mild to moderate symptoms that could be presumed to negatively impact the Veteran's interpersonal interactions in the work setting as well as her interest in task completion on occasion." The examiner also noted that the Veteran would have "difficulty" with work relationships and stress in a worklike setting. In a May 2019 Hip and Thigh Conditions DBQ, the examiner provided the following regarding the occupational effects of the Veteran's hip disabilities: "The Veteran's hip disabilities impacted her ability to perform any type of occupational task. In her previous job in service, the Veteran lost two to four weeks in the last 12 months. She reported difficulty with prolonged sitting and standing for more than 30 minutes since this increased her bilateral hip pain." In a June 2019 Back Conditions DBQ, the examiner provided the following regarding the occupational effects of the Veteran's back disability: "Avoid repetitive bending, avoid heavy and repetitive lifting, avoid running and jumping, avoid repetitive stair climbing. Avoid work causing jarring motion (e.g. heavy equipment operator)." During her September 2021 hearing, the Veteran testified that due to her service-connected psychiatric disability, she had difficulty interacting with people due to her anxiety. She also struggled with focus and concentration. She was able to perform simple tasks such as baking an easy dish, but she needed breaks and became easily distracted. She also testified that she could not stand for more than 15 minutes due to her hips and back pain. She had to lean and sit after 15 minutes, was only able to walk for 20 minutes at a time, and was unable to sit for more than 15 minutes at a time. She reported that she stayed in bed a lot and had to rest in order to keep the swelling down. Her boyfriend helped her by driving her everywhere because she had a hard time keeping pressure on the accelerator to drive. She could only lift and carry about 15 pounds. In a mail sorting and administrative work scenario where she could sit and stand, she testified that she would need to recover the next day because of swelling, aching, and difficulty sleeping. She also noted that her left hand disability affected her grip and range of motion. She was unable to type on a keyboard for a long period of time because her wrist would swell from use. Regulations place responsibility for the ultimate TDIU determination on the Board and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran completed her high school degree and received vocational training in the military as a field radio operator. Based on her level of education, occupational training and experience, her employment opportunities are very limited. While in service, the Veteran received vocational training that required her to carry heavy equipment into the field and be very mobile. For that reason, her service-connected disabilities would not allow her to return her to the type of work for which she is vocationally trained. Even if the Veteran were to obtain additional education, she is unable to do manual labor or office work because, as noted above, she is unable to type on a keyboard for very long without her left hand disability being affected. Additionally, the fact that the Veteran is unable to drive herself anywhere further limits her because she would be unable to commute to work and remote work opportunities generally require keyboarding. The Board finds persuasive and probative evidence that the Veteran is unable to obtain and maintain substantially gainful employment due to her service-connected disabilities. Thus, the Board finds the evidence establishes that her service-connected disabilities rendered her unable to obtain and maintain substantially gainful employment from April 5, 2012. A TDIU is granted from April 5, 2012. REASONS FOR REMAND Entitlement to a TDIU prior to April 5, 2012 is remanded. Prior to April 5, 2012, the Veteran did not meet the threshold requirements for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). During that time, the Veteran was service-connected for a low back strain rated as 10 percent effective June 14, 2011, piriformis syndrome of the right hip and the left hip, both rated as 10 percent effective April 29, 1999, a ganglion cyst on the fourth finger of the left hand and left wrist rated as noncompensable effective April 29, 1999, and tinea pedis rated as noncompensable effective April 29, 1999. These disabilities resulted in a combined rating of 20 percent from April 29, 1999 and a combined rating of 30 percent from June 14, 2011. 38 C.F.R. § 4.25. Therefore, the threshold percentage requirements for an award of schedular TDIU are not met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, it is the established policy of VA that all Veterans who are individually 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). An extraschedular TDIU may be assigned in exceptional cases to a Veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the Board cannot grant an extraschedular rating in the first instance. Rather, it must remand the claim for referral to the Director of the Compensation Service for consideration of entitlement to an extraschedular TDIU. 38 C.F.R. § 4.16(b). As noted above, the Veteran has not worked since 1999 following her separation from service. Her testimony is that her employability was unchanged during the 11-month period from May 26, 2011 to April 5, 2012. Thus, referral for extraschedular is warranted. Given the evidence discussed above, remand is required for referral to the Director of the Compensation Service for consideration of entitlement to an extraschedular TDIU for the period prior to April 5, 2012. Accordingly, the matter is REMANDED for the following action: (Continued on the next page) Refer the case to the Director of Compensation for consideration of whether a TDIU is warranted prior to April 5, 2012 pursuant to 38 C.F.R. § 4.16(b). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.