Citation Nr: 21063450 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-09 009 DATE: October 14, 2021 ORDER A total disability rating based on individual unemployability (TDIU) from January 28, 2014 is granted. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment from January 28, 2014, onward. 2. The evidence of record reflects that the Veteran was incarcerated from May 2, 2016, to July 3, 2017. CONCLUSION OF LAW The criteria for an award of TDIU from January 28, 2014 are met. 38 U.S.C. §§ 1155, 5107(b), 5313; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2007 to January 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. In October 2020 the Board remanded the issue on appeal for the Agency of Original Jurisdiction (AOJ) to develop the issue of a TDIU. In March 2021, the Board once again remanded the issue on appeal to provide the Veteran with an additional opportunity to file a completed VA Form 21-8940. After an April 2021 Supplemental Statement of the Case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as in March 2021 the AOJ sent the Veteran a communication for him to submit VA Form 21-8940 and VA Form 21-4192. See 3/17/2021 Subsequent Development Letter. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in March 2021 the Board granted an increased rating for the Veteran's left lower extremity and right lower extremity disabilities. The March 2021 rating decision implemented the March 2021 Board decision. As such, the issues of an increased rating for the Veteran's left lower extremity and right lower extremity disabilities are no longer on appeal and will not be discussed further. A TDIU. The Veteran seeks entitlement to a TDIU. Specifically, he and his authorized representative assert that his service-connected psychiatric disorder prevents him from securing or following any substantially gainful occupation since January 2014. Additionally, the Veteran's authorized representative asserts that the Veteran has difficulty holding down a job due to low back pain, leg weakness, stress, impaired judgment, difficulty sleeping, increased irritability and anger issues, and suicide ideation and attempts. See 8/27/2019 Hearing Transcript, at page 6; see also 4/16/2021 VA Form 21-8940; 9/17/2021 Appellate Brief, at pages 2 to 6. After affording the Veteran the benefit of the doubt, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from securing or following gainful employment. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Specific provisions for a TDIU apply to incarcerated Veterans. Under 38 C.F.R. § 3.341(b), a rating for a TDIU which would first become effective while a Veteran is incarcerated in a penal institution for conviction of a felony, shall not be assigned during such period of incarceration. See 38 U.S.C. § 5313(c). Adjudication of a TDIU is prohibited if that rating would begin while the Veteran is incarcerated for a felony conviction. See VAOPGCPREC 13-97 (Apr. 7, 1997). Accordingly, entitlement to a TDIU may be denied as a matter of law if the TDIU rating would commence during a period of incarceration for a felony. As a preliminary matter, the evidence of record reflects that the Veteran was incarcerated from May 2, 2016 to July 3, 2017. See 1/18/2018 VA 27-0820e. As a result of his sentence, a TDIU shall not be assigned during the period of incarceration. As such, entitlement to a TDIU from May 2, 2016 to July 3, 2017 is not warranted as a matter of law. See 38 U.S.C. § 5313(c); see also 38 C.F.R. § 3.341(b). In this case, the record shows that the Veteran meets the percentage threshold for consideration of a TDIU per 38 C.F.R. § 4.16(a)(2) since January 28, 2014. In detail, service connection is in effect for an acquired psychiatric disorder (30 percent from January 28, 2014; 70 percent from February 5, 2019), a right shoulder disability (30 percent from January 28, 2014), a lumbar spine disability (20 percent from January 28, 2014; 100 percent from May 22, 2015; 20 percent from July 1, 2015), a left lower extremity disability (10 percent from January 28, 2014; 20 percent from November 4, 2020), a right lower extremity disability (10 percent from January 28, 2014; 20 percent from November 4, 2020), tinnitus (10 percent from January 28, 2014), right lower extremity scar (noncompensable from January 28, 2014), and right upper extremity scar (noncompensable from January 28, 2014). As such, the Veteran met the schedular criteria of 38 C.F.R. § 4.16(a)(2) since January 28, 2014. The evidence of record, which is based on information reported by the Veteran, establishes that the Veteran has a three-year college education and became too disabled to work in January 2014. Additionally, the record shows that he worked in delivery from April 2014 to July 2014, as a service representative from September 2017 to November 2018, in delivery from February 2019 to May 2021, and as a driver from May 2021 to the present. See 4/16/2021 VA Form 21-8940; see also 5/27/2021 Email Correspondence. Most of the Veteran's reported jobs were part-time and his reported earnings were below the poverty thresholds. Furthermore, the record showed that the Veteran's work as a flower delivery person was full-time. The Veteran reported that he earned $10.00 per hour for approximately 32 hours per week, which amounts to a yearly income of $16,640.00. However, to the extent that the Veteran had monetary earnings from full-time work in 2019 and 2020, the available evidence of record tends to show that his earnings were below the poverty thresholds and as such, his employment would be marginal. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (2019 earnings of $25,926; 2020 earnings of $26,246). Therefore, the Veteran has not worked in a substantially gainful occupation during the period on appeal. The Veteran's authorized representative also made this argument. See 9/17/2021 Appellate Brief, at pages 4 and 5. Next, the Board will review, relevant competent evidence describing the impact and/or impairment from his service-connected disabilities. About the Veteran's bilateral lower extremities disability, during a February 2019 peripheral nerves conditions VA examination, the Veteran reported experiencing weakness and frequent numbness and tingling in his lower extremities. The objective examination showed bilateral lower extremities symptoms, such as mild intermittent pain, numbness, and paresthesias/dysesthesias. At the conclusion of the examination, as functional impairment, the clinician reported that the Veteran would have "[l]ess productivity with radiculopathy." See 2/5/2019 C&P Examination. An additional peripheral nerves conditions VA examination was conducted in November 2020. The examination showed bilateral lower extremities symptoms, such as mild constant pain, numbness, and paresthesias/dysesthesias. Further, it showed moderate bilateral lower extremities intermittent pain. At the conclusion of the examination, as functional impairment, the clinician stated that the Veteran reported experiencing numbness and an inability to feel his bilateral lower extremities. See 11/4/2020 C&P Examination. With regard to the Veteran's lumbar spine disability, during the December 2019 VA examination, the Veteran reported experiencing locking, weakness, difficulty bending and running, and tightness, which limits his range of motion. Additionally, he reported an inability to move during flare-ups. At the conclusion of the examination, as functional impairment, the examiner stated that the Veteran reported that prolonged sitting and walking irritates his back. See 12/31/2019 C&P Examination. Turning to the Veteran's psychiatric disorder, the Veteran underwent a February 2019 posttraumatic stress disorder (PTSD) VA examination. The examination shows that the Veteran has difficulty spelling words and remembering names of people he knows. Additionally, he has a poor relationship history, is stressed at work, his coworkers irritate him, has had several near fights, and has attempted suicide twice. The examination showed symptoms, such as a depressed mood, anxiety, suspiciousness, panic attacks more than once per week, and near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Further, he had mild memory loss, an impairment of short and long-term memory, and memory loss for names of close relatives, own occupation, or own name. Moreover, he had a flattened affect, an impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. In addition, he had difficulty adapting to stressful circumstances, including work or work-like setting, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and an intermittent inability to perform activities of daily living. The objective examination showed that the Veteran was oriented and had no evidence of a thought disorder. However, he was not groomed and had a distinct odor. Finally, the examiner opined that the Veteran had an occupational and social impairment with deficiencies in most areas. See 2/5/2019 C&P Examination. Moreover, the Veteran was afforded a mental disorder (other than PTSD) VA examination in February 2019. The examination showed symptoms, such as a depressed mood, anxiety, suspiciousness, panic attacks more than once per week, and near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Additionally, he had a chronic sleep impairment, mild memory loss, a flattened affect, an impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. Furthermore, he had difficulty adapting to stressful circumstances, including work or work-like setting, an inability to establish and maintain effective relationships, and suicidal ideation. Moreover, he had an impaired impulse control, such as unprovoked irritability with periods of violence, and an intermittent inability to perform activities of daily living. The objective examination showed that the Veteran was oriented, cooperative, attentive, alert, and appropriately dressed. Additionally, he had an adequate visual contact and speech and no suicidal/homicidal ideation, hallucinations, or delusional thinking. However, the Veteran was also tearful throughout the examination, had a depressed mood and affect, which he reported affected his vegetative functions, and an increased risk for suicidal ideation. Finally, the examiner opined that the Veteran had an occupational and social impairment with deficiencies in most areas. See 2/10/2019 C&P Examination. VA treatment records showed that the Veteran was unemployed, homeless, had been unable to hold down a job, and looked for help with his unemployment. See 2/6/2017 CAPRI, at pages 98 and 123; see also 2/27/2019 CAPRI, at pages 52, 88. Based on the evidence above, and resolving doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. In this regard, he is no longer able to maintain employment because of his inability to function independently, appropriately, and effectively, as well as the requirement of being around others. Additionally, the evidence of record shows that the Veteran has mood disturbances, anger outbursts, short-term memory deficits, and an inability to establish and maintain effective relationships. In the Board's review of the facts, to include the Veteran's education, work history, and impairment from his service-connected disabilities, he has a complex and multifaceted disability picture that is incompatible with substantially gainful employment. The Board further finds that sedentary work is not a realistic option for the Veteran given his education level and limited work experience. There is no indication that the Veteran has the skills and experience to secure and maintain a job in the modern work environment. Further, there is no evidence that the Veteran has any experience in a socially isolated position that would be appropriate for one with his educational and occupational background. In summary, the Board finds the evidence to be in equipoise with respect to whether the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment from January 28, 2014 onward, noting, as appropriate, the Veteran's incarceration from May 2, 2015 to July 3, 2017. 38 U.S.C. §§ 5107(b), 5313. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.