Citation Nr: 21066812 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-50 328A DATE: November 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 2001 to July 2005. Previously, in April 2019, the Board of Veterans' Appeals (Board) found that the issue of entitlement to a TDIU was part and parcel of the Veteran's increased rating claims then on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The increased rating claims were decided in an April 2019 Board decision, which also remanded the current TDIU claim for further evidentiary development. Entitlement to a TDIU The Veteran asserts that his service-connected disabilities prevent him from working or obtaining employment. 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. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned 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 if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Further, the Board notes that for schedular TDIU, for the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16 (a)(2). "Marginal employment," as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. In his application for a TDIU, the Veteran indicated that he had an education up to one year of college and did not work full-time since December 1, 2014. He listed employment to include Multifamily Pest Control from September 2016 to December 2016 and laying concrete at Creative Edge from March 2017 to October 2017 where he was self-employed. In the November 2020 supplemental statement of the case (SSOC), the RO denied the Veteran's claim for a TDIU because his TDIU application was incomplete. However, given the ample positive evidence for the claim of a TDIU, the Board respectfully disagrees. Indeed, in light of his reports for full-time and substantially gainful employment, the Veteran met the schedular criteria for a TDIU on May 1, 2014. Currently, he is service connected for posttraumatic stress disorder (PTSD) (50% from 2/20/2014 and 70% from 8/15/2019); degenerative arthritis of the lumbar spine (20%); right knee degenerative joint disease (10%); chronic left knee strain (10%); left lower extremity radiculopathy (10%); right lower extremity radiculopathy (10%); and lumbar spine scar (0%). He has a combined service-connected rating of 80 percent from May 1, 2014 and 90 percent from August 15, 2019. Moreover, medical evidence of record indicates that he is incapable of securing or following a substantially gainful occupation, consistent with his background and education, due to his service-connected disabilities alone. On a VA PTSD examination in May 2014, the Veteran exhibited symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. He had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The majority of his impairment was related to his PTSD however, alcohol and substance use exacerbated symptoms. The Veteran reported working for the Department of Corrections since November 2011 and acknowledged some difficulty with his supervisors and stated that he had trouble following directions. On a VA back examination in September 2014, the Veteran reported back and bilateral low radicular pain. It was noted that his back condition would limit a physical type of job. A January 2015 VA medical assessment noted that the Veteran was "unemployed his choice, and is thinking about attending college." A May 2015 VA medical note indicated that he had "hopes to do more boating and fishing," but had "no desire to look for employment at [that] time." On a VA back examination in May 2016, the Veteran reported limited walking, standing, and sitting for extended periods of time. He reported being self-employed part-time performing concrete curbing and stamping, and denied missing any days of work. A June 2016 VA medical note indicated that he was unemployed by choice and spent a lot of time with his live-in girlfriend and her daughter. A July 2016 private opinion from Dr. H.S. found that, in an 8-hour workday, the Veteran would be unable to stand, walk, sit, and/or stoop for less than 2 hours. He would also require one additional break per day aside from normally scheduled morning, lunch, and afternoon breaks, and for more than 3 days per month would not stay focused for at least 7 hours of an 8- hour workday. The examiner concluded, given this and the Veteran's limited mobility, severe pain, and physical limitations, that he is unable to maintain substantially gainful employment as a result of his service-connected PTSD, back disability, bilateral knees disability, bilateral lower extremity radiculopathy, and residual scar of the lumbar spine. A March 2017 ophthalmology consultation revealed the Veteran had symptoms of blurry vision, mild headaches, and lightheadedness and had an MRI which suggested a disease based on increased space around optic nerves, empty sella and flattened posterior globes. It was noted that the Veteran had been involved with pest control for 3-4 months prior to beginning of symptoms. An April 2017 medical note indicated that he was unable to work due to his dizziness and blurry vision, and indicated that he was previously working in pest control. A February 2018 VA mental health treatment note indicated that he had recently worked (laying decorative concrete). He reported that he felt that he has been very stable for nearly 10 years. A July 2018 VA emergency department note indicated he had been laying concrete and presented with cramping in his lower leg. A September 2020 VA PTSD examination revealed occupational and social impairment with deficiencies in most areas. The Veteran reported that he was not currently working. He had difficulty attending to and was easily distracted from given tasks and had panic attacks that interfered with his ability to function consistently in a work environment. Further, a concurrent Individual Unemployment Statement for PTSD revealed that he had difficulty attending to, or is easily distracted from, tasks at hand and that he exhibited panic attacks that interfered with his ability to function consistently in any work environment. October 2020 Individual Unemployment Statements for the Veteran's peripheral nerve, knee and lower leg, and back conditions revealed that he was physically limited to medium work including exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements were in excess of "light work." Given the above, the Board find that the most probative evidence of record, reaches, at a minimum, the level of equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. The Board recognizes the inconsistency and inadequacy between the TDIU application and the medical evidence of record. However, the most probative evidence, specifically the July 2016 private opinion, and the September 2020 and October 2020 VA examinations and Individual Unemployment Statements, is sufficient to grant the claim for TDIU. Accordingly, and afforded the benefit of the doubt, the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. He is limited to the point that gainful employment, based on his service-connected disabilities, is not possible. Entitlement to a TDIU is, thus, warranted. However, the Board will not assign an effective date for the grant of TDIU and will allow the agency of original jurisdiction to do so in the first instance, taking into consideration the last date on which the Veteran was employed full time in substantially gainful employment and the subsequent and relevant medical evidence of record. See Urban v. Principi, 18 Vet. App. 143, 145 (2004). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.