Citation Nr: A21016261 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 190910-29537 DATE: October 1, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU), from December 18, 2018 (exclusive of the period from January 23, 2019 to February 29, 2020), is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to December 18, 2018 is remanded. FINDING OF FACT From December 18, 2018, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU from December 18, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1996. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA applies to all claims for which VA issued notice of an initial decision on or after February 19, 2019. 38 C.F.R. §§ 3.2400(a)(1); 19.2(a). This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to a TDIU. In a September 2019 Decision Review Request: Board Appeal (notice of disagreement) (VA Form 10182), the Veteran timely appealed the August 2019 rating decision to the Board and requested direct review of the evidence considered by the RO. 38 C.F.R. § 20.202. Therefore, the evidentiary record before the Board is limited to the evidence of record at the time of the RO's August 2019 decision. 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. In a May 2020 decision, the Board denied entitlement to a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in April 2021, while the matter was pending before the Court, the Veteran's attorney and VA's General Counsel filed a joint motion for remand (JMR). In May 2021, the Court granted the parties' motion and remanded the matter for action consistent with the JMR. TDIU from December 18, 2018 The issue of entitlement to a TDIU is a potential part of an increased rating claim when such claim is expressly raised by the Veteran, or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In a July 2017 phone call the Veteran stated that he could not work because he could not walk or stand for extended periods or lift or carry heavy objects. In a December 2018 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he is currently unable to perform his work duties due to his multiple disabilities. At the time the Veteran had a pending increased rating claim for his service-connected left knee disability which was filed on a May 2018 Veteran Supplemental Claim (VA Form 21-526b). Therefore, the issue of a TDIU was reasonably raised by the record, and as part and parcel of the claim for an increased rating for his left knee disability. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently in receipt of service connection for radiculopathy of the left lower extremity rated 40 percent, effective December 18, 2018, radiculopathy of the right lower extremity rated 10 percent, effective December 18, 2018, right knee total knee arthroplasty rated 30 percent, effective April 1, 2015, left total knee arthroplasty rated 30 percent, effective March 1, 2020, tinnitus rated 10 percent, effective November 25, 2009, and degenerative arthritis of the cervical spine rated 10 percent, effective December 18, 2018. The Veteran has therefore met the percentage requirements under 38 C.F.R. § 4.16(a) for a schedular TDIU on December 18, 2018. Prior to this date, the Veteran did not meet the percentage requirements to include any of the exceptions in 38 C.F.R. § 4.16(a)(1)-(5). The period before December 18, 2018 will be discussed separately below. In May 2021 the Court remanded the issue of a TDIU because the parties agreed that the May 2020 Board decision did not adequately discuss the Veteran's educational level, prior vocational history, and work experience, or relate those factors to the physical and mental limitations caused by his service-connected disabilities. The Board also did not explain or interpret the concept of sedentary work when denying the issue and used an incorrect standard to consider entitlement to a TDIU. Consistent with the instructions of the parties to the JMR, the Board will address these matters below. A July 2013 Counseling Record-Narrative Report (VA Form 28-1902b) indicates that the Veteran earned an Associate Degree in Criminal Justice at Fayetteville Technical College in 1984. The Veteran reported that he worked as a contract investigator, a transporter/driver, and an assistant manager at the Federal Law Enforcement Training Center. An April 2017 VA examiner noted that the Veteran's hearing loss and tinnitus impacted his ability to work as he reported he has selective hearing and difficulty understanding conversations. The vocational rehabilitation counselor noted that the Veteran's has a law enforcement background and is limited to performing sedentary tasks due to his service-connected disabilities. In a July 2017 phone call, the Veteran stated that he could not work because he could not walk or stand for extended periods or lift or carry heavy objects. A June 2018 VA examiner noted that the Veteran's thoracolumbar spine (back) condition and knee disabilities impact his ability to work. Specifically, the VA examiner noted that the Veteran has difficulty walking due to sciatic nerve damage which causes him severe foot drop and weakness in his left leg. In a December 2018 VA Form 21-4138 the Veteran stated that he was an independent contractor for MSM Securities and was unable to perform his work duties due to his disabilities. The Veteran attended a January 2019 VA examination which preceded his total left knee arthroplasty. The Veteran reported that he uses a walker or cane for ambulation and can barely walk. In a May 2019 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) the Veteran stated that his radiculopathy, total knee arthroplasty surgeries, and his low back and cervical spine disabilities prevent him from securing or following any substantially gainful occupation. The Veteran stated that he worked 30 hours per week as a contractor for MSM Security Services from January 1, 2009 to August 1, 2019. The Veteran stated he earned $500 as his highest monthly income with $2,500 over the previous 12 months. The Veteran stated that he became too disabled to work on August 1, 2018. In a June 2019 Request for Employment Information (VA Form 21-4192) the Veteran reported that he conducts background investigations and he can choose when and if he wishes to work. In a July 2019 correspondence, a vocational rehabilitation counselor informed the Veteran that his bachelor's degree from Francis Marion University made him more employable and marketable in the job market. Also, in September 2019 correspondence the Veran was informed that he completed training for Security Instructor Level 1, 2 and 3 which would allow him the opportunity to be employable in a related field. It was determined by the vocational rehabilitation counselor that the Veteran met the criteria for Maximum Rehabilitation Gain (MRG). The record shows that the Veteran's service-connected disabilities impact his ability to walk for short distances, stand, use stairs, twist, turn, bend, kneel, squat, and crawl. At least some of these limitations could be considered severe, as he regularly uses a cane, a walker, or a scooter to ambulate. Therefore, the Board finds that the Veteran's combined service-connected disabilities alone would prevent him from engaging in employment requiring even light physical labor. Moreover, the Veteran is competent to report that his service-connected disabilities preclude him from working, as the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The Veteran has a developed educational and occupational history having completed both an associates and bachelor's degree. Until recently, the Veteran worked as a background investigator which indicates he is capable of handling non-physical sedentary employment. Sedentary employment is the common meaning in society of non-physical, white collar, office-type work. However, the Veteran worked on part time basis in this capacity and his income was less than $3,000 over a 12-month period which constitutes marginal employment as it is significantly lower than the poverty threshold since 2018. Overall, the Veteran's hearing loss and tinnitus impact his ability to communicate and the combined effect of his knee, back, and cervical spine disabilities along with his radiculopathy prevent the Veteran from securing and following a substantially gainful occupation in light of his education and occupational experience. For the foregoing reasons, the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to a TDIU from January 23, 2019 to February 29, 2020 Pursuant to 38 C.F.R. § 4.16(a), entitlement to a TDIU applies only "where the schedular rating is less than total," however, a grant of a 100 percent disability does not always render the issue of TDIU moot. The issue of entitlement to a TDIU is not moot where it can assist a veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s)(1). Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). SMC is payable under 38 U.S.C. § 1114(s)(1) when a veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. For the purpose of meeting the first criterion, a rating of 100 percent may be a schedular rating, an extraschedular rating, or a temporary total rating. Additionally, a TDIU may meet the criterion, but only if assigned for a single disability. Bradley, 22 Vet. App. at 294; Buie, 24 Vet. App. at 242. For the period from January 23, 2019 to February 29, 2020, the Veteran was assigned a temporary 100 percent convalescent rating while he recovered from his total left knee arthroplasty. During the same period, the Veteran was granted special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s)(1) and 38 C.F.R. § 3.350(i) for having one disability rated at 100 percent and remaining service-connected disabilities independently ratable at 60 percent or more. The Board finds that the current claim for a TDIU is limited to consideration of the period before January 23, 2019 and after February 29, 2020. In this case, the assignment of the Veteran's 100 percent schedular evaluation for his convalescence post total left knee arthroplasty renders the TDIU claim moot while that rating was in effect because he was also granted an award of SMC(s)(1) pursuant to 38 U.S.C. § 1114(s)(1) and 38 C.F.R. § 3.350(i). Therefore, the Veteran's benefits for that period have already been maximized. Under such circumstances, the claim for a TDIU from January 23, 2019 to February 29, 2020 is moot. REASONS FOR REMAND Entitlement to TDIU on an extraschedular basis prior to December 18, 2018 is remanded. For the period prior to December 18, 2018, the Veteran was service connected for right knee total knee arthroplasty rated 30 percent, left total knee arthroplasty rated 10 percent, left knee instability rated 10 percent, tinnitus rated 10 percent, and degenerative arthritis of the cervical spine rated 20 percent for a combined 60 percent rating. Therefore, the Veteran did not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a) to include the exceptions in 38 C.F.R. § 4.16(a)(1)-(5). Even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted." Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." In the present case, there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to December 18, 2018. However, as explained above, pursuant to Bowling v. Principi, 15 Vet. App. 1 (2001), the Board does not have the authority to assign an extraschedular TDIU in the first instance and referral to the Director, Compensation Service, for consideration of entitlement to a TDIU prior to December 18, 2018 is warranted. This remand is based on an agency of original jurisdiction (AOJ) error in satisfying a regulatory duty, the correction of which has a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to December 18, 2018, to the Director of Compensation Service. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.