Citation Nr: 21066424 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-61 573 DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted for the entire period on appeal. FINDING OF FACT Over the course of the entire appeal period her, the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities 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 had honorable active duty service in the United States Navy from March 1985 through August 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge in March 2020 and waived his right to have counsel present. A transcript of the hearing has been associated with the record. In April 2020 and March 2021, the Board remanded the issue for further development. Given the positive disposition here, no discussion of whether the Board's remand directives were accomplished is required. Entitlement to a TDIU. Entitlement to a TDIU is warranted for the entire appeal period. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her 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). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), "Marginal employment shall not be considered substantially gainful employment." Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a fact-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. 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, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities, or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, that all veterans who are 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). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In May 2019, the United States Court of Appeals for Veterans Claims (Court) held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran's history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue; and 3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). In Ray v. Wilkie, the Court explained that substantially gainful employment 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include: the Veteran's work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. The Veteran is service-connected for the following disabilities: (1) left distal tibia and fibula fracture with traumatic arthritis of the ankle rated at 30 percent from January 1, 1990; (2) DJD lumbar spine and DDD lumbar spine (lumbar spine degenerative arthritis) rated at 20 percent from July 30, 2013; (3) left lower extremity radiculopathy (sciatic nerve) associated with DJD lumbar spine and DDD lumbar spine (lumbar spine degenerative arthritis) rated at 20 percent from July 30, 2013; (4) right lower extremity radiculopathy (sciatic nerve) associated with DJD lumbar spine and DDD lumbar spine (lumbar spine degenerative arthritis) rated at 20 percent from July 30, 2013; (5) semilunar cartilage condition of the right knee associated with left distal tibia and fibula fracture with traumatic arthritis of the ankle rated at 20 percent from May 19, 2014; (6) left knee chondromalacia of the patella and femoral trochlea with DJD rated at 10 percent from September 28, 2006; (7) right knee degenerative joint disease (DJD) with torn meniscus and chondromalacia arthritis rated at 10 percent from September 28, 2006; (8) left knee instability associated with left knee chondromalacia of the patella and femoral trochlea with DJD rated at 10 percent from September 16, 2020; (9) erectile dysfunction associated with left distal tibia and fibula fracture with traumatic arthritis of the ankle rated at 0 percent from July 17, 2007; (10) scars, left knee associated with left knee chondromalacia of the patella and femoral trochlea with DJD rated at 0 percent from March 17, 2010; (11) scar, left distal tibia associated with left distal tibia and fibula fracture with traumatic arthritis of the ankle rated at 0 percent from March 17, 2010; (12) scar, left medial ankle associated with left distal tibia and fibula fracture with traumatic arthritis of the ankle rated at 0 percent from March 17, 2010; and (13) scar, right knee associated with right knee degenerative joint disease (DJD) with torn meniscus and chondromalacia arthritis rated at 0 percent from September 16, 2020. The Veteran's combined evaluation meets the requirements under 38 C.F.R. § 4.16(a) for the entire period on appeal from July 30, 2013 to present. Therefore, the Board must discuss whether the Veteran's service-connected disabilities preclude him from being able to gain/maintain a substantially gainful occupation. In May 2014, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (application for a TDIU). On the application, the Veteran noted that his service-connected disabilities from his head to his ankles prevented him from securing or following substantially gainful employment. The Veteran last worked full-time in January 2010 in the textiles industry. The Veteran reported that he completed 2 years of college; his education was in accounting. The Veteran reported that he was too disabled to work. In April 2014, the Veteran was afforded a VA examination for his back disability. The Veteran was diagnosed with degenerative joint disease and degenerative disc disease in his back. The Veteran reported that he had flare-ups on numerous occasions. The Veteran constantly used a brace and cane at all times and occasionally used a wheelchair for any prolonged anticipated need for ambulation. The Veteran reported that his service-connected back condition impacted his ability to work. He worked in heating and air but had to stop working because of his back problems. In September 2014, the Veteran was afforded a VA examination for his back disability. The Veteran was diagnosed with degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine. The VA examiner noted that the Veteran's back condition impacted his ability to work. The Veteran's back condition would impact physical labor by limiting the Veteran's ability to carry/lift, bend/twist, climb ladders/stairs, and stand for prolonged periods of time. Also, the Veteran's back condition would impact non-physical labor by limiting the Veteran's ability to sit for prolonged periods of time without getting up to move around periodically. In September 2020, the Veteran was afforded a VA examination for his back disability. The Veteran had debilitating back pain that was sharp and rated it as an 8 out of 10. The Veteran endorsed intermittent radicular pain and paresthesia in his left leg. The Veteran had difficulty sleeping through the night due to his back pain. He also endorsed limited range of motion for his lumbar spine. The Veteran wore a lumbar brace and wore a compression shirt daily for lumbar support. He took Tylenol and ibuprofen daily for back pain. Further, the Veteran smoked marijuana at night and occasionally took oxycodone for his back pain. The Veteran used a cane and lumbar brace to help with back pain. He could not bend, twist, or stoop due to back pain. The Veteran could not carry more than 10 pounds safely due to back pain. He also utilized a stool during his work as an electrician due to inability to bend forward. The Veteran could not safely climb a ladder due to back pain. The Veteran regularly used a brace and cane assistive devices for arthritis and radiculopathy of the lumbar spine. It was noted that the Veteran worked as an electrician but lost 2 to 4 weeks of work time in the last 12 months due to his back disability. His degenerative arthritis and radiculopathy of the lumbar spine caused the Veteran not to be able to bend, stoop, or squat. He could not carry more than 10 pounds or safely use a ladder. In September 2014, the Veteran was afforded a VA examination for his bilateral knee conditions. The Veteran was diagnosed with degenerative joint disease and chondromalacia of the bilateral knees and torn meniscus in the right knee. Although the Veteran had a scar from his surgery, it was not painful and/or unstable, or a total area of greater than 39 square centimeters or 6 square inches. The Veteran occasionally used a wheelchair for his degenerative joint disease, bilateral knees, and lumbar spine. He constantly used a cane and braces for his bilateral knees. The VA examiner noted that the Veteran's bilateral knee condition impacted his ability to work. The Veteran's bilateral knee condition would impact physical labor by limiting the Veteran's ability to carry/lift, bend/twist, climb ladders/stairs, and stand for prolonged periods of time. Also, the Veteran's knees would impact non-physical labor by limiting the Veteran's ability to sit for prolonged periods of time without getting up to move around periodically. On his September 2020 VA examination, the Veteran reported daily aching and sharp bilateral knee pain. The pain was worse with walking up and down stairs, squatting, and kneeling. Nothing made the pain better. The Veteran used a brace constantly for his right knee arthritis and a cane regularly for his right and left knee arthritis. The VA examiner concluded that the Veteran's knee conditions impacted his ability to perform work. The Veteran was an electrician. Due to his knee condition, the Veteran lost 2-4 weeks in work time in the last 12 months. He had difficulty walking up and down stairs, squatting, kneeling, and bending at the knee due to bilateral degenerative joint disease of the knees. In September 2014, the Veteran was afforded a VA examination for his left ankle. The Veteran was diagnosed with traumatic arthritis and distal tibia/fibula fracture of the left ankle. The VA examiner concluded that the Veteran's ankle condition impacted his ability to work. For example, the condition might impact physical labor by limiting the ability to kneel, lift/carry, climb ladders, stairs, and stand for prolonged periods of time. However, the condition would not have a significant impact on performing non-physical labor. In September 2020, the Veteran was afforded a VA examination for his left ankle. The Veteran was diagnosed with left distal tibia and fibula fracture with traumatic arthritis of the ankle. The Veteran reported daily aching pain in his left ankle. He endorsed occasional numbness and altered sensation in his left ankle. The Veteran reported very limited range of motion and felt that his ankle was unstable. In September 2020, the VA examiner provided the Veteran with a TDIU opinion. The VA examiner opined that it was at least as likely as not that due to the Veteran's service-connected disabilities, the Veteran was able to perform light work in a normal 8 hour workday. The Veteran could exert up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. The VA examiner noted that a job should be rated light work when: (1) it required walking or standing to a significant degree; or (2) it required sitting most of the time but entailed pushing and/or pulling of arm or leg controls; and (3) the job required working at a production rate pace entailing the constant pushing and/or pulling of material even though the weigh to of those materials was negligible. During the Veteran's March 2020 hearing before the Board, the Veteran testified that he did not do that much physical labor on his job. He stated that he was an electrician apprentice; he mainly just hooked up outlets, switches, and wires in a panel box. The reason that he was able to do that is because he worked for a private individual that owned the establishment. The Veteran also stated that he missed work quite frequently because of the pain his service-connected disabilities caused him. The only reason he got the job was so that he would not have to file for bankruptcy or become homeless. The Veteran's records contain a November 2011 disability determination from the Social Security Administration (SSA). SSA determined that the Veteran's severe disabilities, which included degenerative disc disease of the lumbar spine, history of left distal and fibula fracture with traumatic arthritis of the ankle, left knee chondromalacia of the patella and femoral trochlea, degenerative arthritis of the right knee, history of right recurrent medial meniscus tears and medial femoral chondral changes, and etc., caused the Veteran to be able to perform less than a significant range of even non-physical work. The Veteran was unable to perform work at any exertional level on a consistent basis for 8 hours a day, 40 hours per week. See August 2014 Medical Treatment Records-Furnished by SSA. Also of record is the Veteran's income earnings record from SSA. See August 2021 Correspondence. The Veteran did not have any income in 2013, 2014, 2015, or 2016. In 2017, the Veteran worked for an investment company and earned $9,272.65 that year. In 2018, the Veteran worked for an investment company and an electrical contracting company; he earned a total of $23,434.75. In 2019, the Veteran only worked for the electrical contracting company and earned $32,236.00. In 2020, the Veteran earned $29,580.67. See August 2021 Correspondence. Based on a thorough review of the medical evidence and lay statements of record, the Board finds that the combined effects of the Veteran's multiple service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The Veteran was unemployed and did not earn any income from 2013 to 2016. However, in 2017, the Veteran earned $9,272.65, which was below the poverty threshold according to the U.S. Department of Commerce, Bureau of Census. See Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Thus, the Veteran's employment in 2017 was marginal. However, in 2018 through present, the Veteran began working for an electrical company in which his income was the above the poverty threshold. During his March 2020 hearing before the Board, the Veteran testified that all he was able to do as an electrician apprentice was hook up outlets, switches, and wires in a panel box. The reason that he was able to do that is because he worked for a private individual that owned the establishment. The Veteran also stated that he missed work quite frequently because of the pain his service-connected disabilities caused him. The Board finds that the Veteran is likely working in a sheltered workshop/protected environment because the employer is more than likely allowing the Veteran to have certain accommodations for his disability to be able to perform the job. If the employer were not providing the Veteran with accommodations, then the Veteran would not be employed or able to work full-time. Moreover, the only reason the Veteran got the job was to prevent himself from becoming homeless. Therefore, the Veteran's employment is considered marginal. In reviewing the noneconomic factors including the Veteran's work history, education, skill, and training, and his physical and mental ability to perform work activities, the evidence of record is at least in relative equipoise as to whether the Veteran is unable to work due to his service-connected disabilities. The Veteran had training in accounting and last worked in the textiles industry. He worked in heating and air. Most recently, the Veteran worked as an electrician. Although the determination is not binding on the Board, the Board finds that the November 2011 SSA determination that the Veteran was not able to work due to his disabilities to be probative because it considered the Veteran's medical record history and the physical limitations the Veteran's disabilities caused. There is no evidence that the Veteran's service-connected disabilities limited his mental ability to function in a work environment. Further, the VA examinations showed that the Veteran's service-connected disabilities caused sharp, debilitating, and frequent pain to the Veteran. The Veteran could not carry more than 10 pounds safely due to back pain. He also utilized a stool during his work as an electrician due to inability to bend forward. The Veteran's back condition impacted physical labor by limiting the Veteran's ability to carry/lift, bend/twist, climb ladders/stairs, and stand for prolonged periods of time. Also, the Veteran's back condition impacted non-physical labor by limiting the Veteran's ability to sit for prolonged periods of time without getting up to move around periodically. The Veteran reported daily aching and sharp bilateral knee pain. The pain was worse with walking up and down stairs, squatting, and kneeling. Additionally, the Veteran used a cane, knee brace, and wheelchair to get around. Although not all the VA examinations reported that the Veteran was unable to work due to his service-connected disabilities, the Board notes that VA has the ultimate decision on entitlement to a TDIU and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). The Board acknowledges the fact that a VA examiner in September 2020 opined that the Veteran's service-connected disabilities allowed the Veteran to still perform non-physical light work that involved sitting most of the time and lifting between 10 to 20 pounds. However, the Board finds that the evidence on the whole is at least in relative equipoise as to whether the Veteran's service-connected disabilities prevent him from maintaining a substantially gainful occupation. The Veteran's disabilities limited him from fully being able to physically function in a full-time work environment on par with his education, work history, and training. The reasonable doubt rule must be applied to the claim, and thus, the claim must be resolved in favor of the claimant. Entitlement to a TDIU for the entire appeal period is granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.