Citation Nr: 21061725 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-34 304 DATE: October 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT It is at least as likely as not the Veteran's service-connected disabilities render him unable to re-enter the workforce and work in any substantially gainful versus just marginal capacity when also considering his level of education, prior work experience and training. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to November 1980 and from December 1980 and May 1994. This appeal to the Board of Veterans' Appeals (Board) originated from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) that, in relevant part, continued to deny this TDIU claim. An earlier, April 2012, rating code sheet indicates this TDIU claim had been considered and denied, although the narrative portion of that rating does not mention this claim. That earlier denial of this claim apparently was because the combined 60 percent rating the Veteran then had for his service-connected disabilities did not meet the rating requirements of 38 C.F.R. § 4.16(a). Entitlement to a TDIU In April 2015, the Veteran requested to reopen his TDIU claim. In the August 2015 rating decision on appeal, the RO reopened the claim but continued to deny it, ultimately concluding there still was insufficient evidence showing the Veteran's service-connected disabilities render him unemployable. Evidence received since the initial April 2012 denial of this claim includes VA and private medical records addressing the severity of the Veteran's service-connected disabilities including their functional impact, which, in turn, assist VA adjudicators in determining whether they render him unemployable and resultantly entitled to a TDIU. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner") Some of the additional evidence concerns the Veteran's service-connected pes planus (flat feet) with plantar fasciitis and, based on these records, VA increased the rating for this disability from 30 to 50 percent in August 2014, in turn increasing the combined rating for his service-connected disabilities to 70 percent, thus, now satisfying the rating requirements of § 4.16(a). Moving now to the merits of the claim, establishing entitlement to a TDIU due to service-connected disabilities requires showing impairment so severe that it is impossible for the average person to follow a substantially gainful occupation due to those same disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is therefore whether the Veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a Veteran is unable to secure or follow a substantially gainful occupation provided that, if there is one disability, it is rated 60 percent or more, and, if there are two or more disabilities, at least one is rated 40 percent or more with additional disability sufficient to bring the combined rating to 70 percent or more. For the purposes of this determination, disabilities resulting from common etiology or single accident, or affecting both upper or lower extremities, or affecting a single bodily system will be considered as one, collective disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran is in receipt of service connection for bilateral pes planus with plantar fasciitis, rated as 50-percent disabling; degenerative arthritis of the spine (low back disability), rated at 40 percent; left bunionectomy with hammer 2nd toe, rated at 10 percent; hypertension rated at 10 percent; right lower extremity radiculopathy (sciatic nerve), associated with the low back disability, rated at 10 percent; left lower extremity radiculopathy (sciatic nerve), associated with the low back disability, rated at 10 percent; right hammer 2nd toe, rated at 0 percent (noncompensable); herpes zoster, including pseudofolliculitis barbae, rated at 0 percent; erectile dysfunction associated with hypertension, rated at 0 percent; and post-surgical scars bilateral feet associated with right hammer 2nd toe, rated at 0 percent. The combined rating for these service-connected disabilities has been 80 percent effectively since November 21, 2019 and, as mentioned, he had a combined 70 percent rating as of August 4, 2014. See 38 C.F.R. § 4.25. Having determined the threshold rating requirements of § 4.16(a) are met since August 4, 2014, the remaining inquiry is whether the service-connected disabilities also render the Veteran incapable of obtaining or maintaining substantially gainful employment versus employment that, instead, is just marginal in comparison. On March 14, 2019, so during the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components. The economic component refers to "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," while the noneconomic component requires consideration of the ability to secure or follow that type of employment. The CAVC also provided guidance regarding the meaning of a veteran's ability to "secure and follow" such employment, requiring attention to: the veteran's occupational history, education, skill and training; if the veteran has the physical ability to perform occupational activities; and if the veteran has the mental ability to perform occupational activities. Here, considering all the relevant evidence of record, the Board finds the evidence at least in relative equipoise (meaning as supportive of the claim as against it) regarding whether the Veteran is unable to work in a substantially gainful capacity because of his service-connected disabilities. To reiterate, marginal employment is not substantially gainful employment. See 38 C.F.R. §§ 4.16(a), 4.18. The record reflects that the Veteran completed high school and took some college courses. He was employed by the Trenton, New Jersey, Board of Education as a custodial worker for approximately 15 years until his position was eliminated. Regardless of that unfortunate ending to that prior job, he consistently has maintained that he been unable to work since at least 2013 because of his service-connected disabilities. There is no indication that he has any other specialized training or significant employment experience. The reports of December 2014 and August 2019 VA foot examinations reflect daily pain from the Veteran's service-connected pes planus and hammer toes that causes functional loss in relation to standing, walking, and climbing even just one flight of stairs. His symptoms also worsen with changes in weather. He uses a cane, has custom orthotics, receives physical therapy, and takes medications to try and manage his pain and other symptoms, but with only relatively limited success. One examiner determined the Veteran's service-connected disabilities would require him to work in a seated or "sedentary" job without protracted weightbearing and allowing for breaks when standing is required. However, more recent January and July 2020 VA spine examiners conceded the Veteran's low back disability prevents, or otherwise will be greatly aggravated by, prolonged sitting. These examiners also found functional limitations walking and lifting due to his low back disability. The July examiner particularly observed limited motion and muscle tone owing to the disability. Both noted the Veteran uses a back brace, TENs unit, receives physical therapy, and takes medications to manage his pain and other symptoms, again, though, with just some relief of his discomfort, so not abatement of his symptoms. Also, significantly, the record indicates his treatment is for both pain and to control balance. Treatment notes from December 2015 further indicate he was first issued a cane due to a gait abnormality caused by his low back disability. These two service-connected disabilities present the most severe functional impairments, comparatively, when considering the total record. The Veteran's bilateral (meaning left and right) lower extremity radiculopathies cause abnormal nerve sensation in his legs, although they do not cause functional loss themselves. Further, his hypertension is shown on record to cause headaches and nosebleeds, but little else in the way of symptoms. It is worth nothing that the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Therefore, the record must reflect some factor that takes a particular case outside the norm for a TDIU claim to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. Here, though, in sum, VA examiners have opined that the Veteran's service-connected disabilities limit his ability to sit, stand, walk, bend, and lift. They advise that he cannot work in a job requiring prolonged or regular walking, but also cannot work in a job requiring prolonged sitting. In addition, his disabilities would cause him physical pain, nerve symptoms, and headaches while at work. The evidence, therefore, is at least in relative equipoise concerning whether he can successfully re-enter the workforce and perform the physical and mental acts required by employment, certainly if substantially gainful employment and not just marginal employment. Considering his physical limitations from his pes planus, low back disability, and other service-connected disabilities, the Board finds the evidence shows that, for all intents and purposes, he is precluded by these disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. Thus, this claim for a TDIU is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.