Citation Nr: 21066386 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-62 688 DATE: October 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT It is just as likely as not the Veteran is unable to obtain or maintain substantially gainful employment because of his service-connected disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 February 1984 to July 2004. In July 2021, the Veteran testified in support of this claim during a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board held the record open for an additional 60 days after the hearing to allow the Veteran time to obtain and submit more supporting evidence. Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, 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 service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper or lower extremities or a single bodily system are considered one, collective, disability. Id. The central inquiry is "whether a Veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran 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, instead, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. On March 14, 2019, so during the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (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 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities The Board concludes that the evidence of record supports finding that the Veteran's service-connected disabilities preclude him from continuing in or returning to the workforce in any substantially gainful (versus just marginal) capacity consistent with his level of education and prior work experience and training. Specifically, there is probative (meaning competent and credible) evidence establishing that the Veteran's service-connected disabilities cause occupational impairment to the point that he should be considered unemployable. In analyzing the meaning of "substantially gainful employment," Courts have concluded that "the test is whether a particular job is realistically within the physical and mental capabilities of the claimant." Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). It is not necessary to find the Veteran is a total basket case before concluding he is unemployable. Accordingly, he need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of his overall employability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). This critical distinction differentiates a 100 percent schedular rating (i.e., total occupational impairment) for, say, a mental disorder such as the one the Veteran has versus what is required for a TDIU. The Veteran has multiple service-connected disabilities that are rated as 90-percent disabling combined. 38 C.F.R. § 4.25. They include: mood disorder (70 percent); hypertensive heart disease associated with hypertension (30 percent); left sciatica associated with lumbar muscle strain (20 percent); degenerative joint disease of the left knee (10 percent); status post surgery to right wrist and metacarpal fracture of right thumb (10 percent); hypertension (10 percent); left wrist carpal tunnel syndrome (10 percent); lumbar muscle strain (10 percent); residual scars, right wrist and right thumb (10 percent); tinnitus (10 percent) scar on left elbow (10 percent); and, erectile dysfunction associated with hypertension (0 percent). He therefore has sufficient ratings for these service-connected disabilities to meet the threshold minimum rating criteria for consideration of a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). The evidence shows the Veteran quit his job as an analyst back in September 2013. On his TDIU application, however, he explained that he left that job due to his service-connected mood disorder, hypertensive heart disease, lumbar muscle strain, and other orthopedic impairments. See August 2014 VA Form 21-8940. During his July 2021 hearing before this Board, he added that he had not sought a job since he quit working in 2013 because he knew that, despite his advanced degree, he would be unable to maintain substantially gainful employment because of his continually disrupted sleep including especially owing to his traumatic experiences in service and his chronic pain that he described as "terrible". The Board sees the Veteran is currently in receipt of Social Security Administration (SSA) disability benefits, and records pertaining to this SSA grant are in his VA claims file. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (noting the relevance of this evidence from this other Federal agency). In March 2015, the Veteran was found entitled to SSA disability benefits effective November 1, 2014, owing to "severe" impairments of degenerative disc disease (DDD) of his lumbar spine and his mood disorder. And, although this determination of this other Federal Agency is not binding on the Board, it nonetheless is pertinent evidence to be considered, and the Board agrees that the Veteran's service-connected disabilities prevent him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In support of his claim, the Veteran submitted a functional assessment from his primary care nurse practitioner, D.L.W., in December 2014 indicating the Veteran cannot walk for a single block without resting or experiencing severe pain, nor sit, stand, or walk, for more than 2 hours. Working at a sedentary job for 8 hours per day would require elevation of his legs for 65 percent of that time, so for most of the day. Similarly, the reports of September 2014 VA examinations reflect that the Veteran would be unable to perform employment requiring any squatting or prolonged sitting, standing, or walking. See Back (Thoracolumbar Spine) and Knee and Lower Leg Conditions Disability Benefits Questionnaires (DBQs). Repetitive use of his right wrist or hand also would not be recommended. See September 2014 Hand and Finger Conditions DBQ. In addition, a September 2014 VA examiner noted that the Veteran's mood disorder and related substance abuse caused moderate difficulty with occupational functioning. See Mental Disorders DBQ. Accordingly, viewing the evidence holistically and affording the Veteran the benefit of the doubt, the Board finds that his service-connected disabilities are shown to prevent him from engaging in any substantially gainful employment. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, entitlement to a TDIU by reason of his service-connected disabilities is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.