Citation Nr: 21068224 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-52 558 DATE: November 9, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from November 5, 2019, is granted. REMANDED Entitlement to a TDIU due to service-connected disabilities prior to November 5, 2019, is remanded. FINDING OF FACT From November 5, 2019, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment consistent with his education and work history. CONCLUSION OF LAW From November 5, 2019, the criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1977 to November 1990. This matter was last before the Board of Veterans' Appeals (Board) in May 2021 and was remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for further development. In that May 2021 decision, the Board noted that the Agency of Original Jurisdiction (AOJ) had not conducted the initial adjudication of the matters of entitlement to service connection for vertigo and a psychiatric disorder, to include as secondary to the service-connected bilateral hearing loss, and directed the RO to adjudicate these matters. Review of the record reveals that the AOJ has not adjudicated these issues. As such, these issues are again REFERRED to the AOJ for development. In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. Entitlement to a TDIU due to service-connected disabilities from November 5, 2019 As noted in the May 2021 Board decision, the issue of entitlement to a TDIU was raised as part and parcel of the Veteran's increased rating knee claims. See Rice v. Shinseki, 22 Vet. Appl 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). As such, the Board will consider whether a TDIU is warranted from the date of the Veteran's increased rating claims. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from securing and following "substantially gainful employment" consistent with his or her 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). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided 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. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). 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 obtaining 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)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 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 U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). However, marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include 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 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. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, for the appeal period from November 5, 2019, the Veteran meets the schedular rating criteria for a TDIU. In this regard, from November 5, 2019, the Veteran is service connected for (1) irritable bowel syndrome (rated as 30 percent disabling), (2) left shoulder rotator cuff syndrome with subdeltoid bursitis (rated as 20 percent disabling), (3) degenerative arthritis of the lumbar spine (rated as 20 percent disabling), (4) tinnitus (rated as 10 percent disabling), (5) right knee arthritis with limitation of flexion (rated as 10 percent disabling), (6) left knee arthritis with limitation of flexion (rated as 10 percent disabling), (7) bilateral hearing loss (rated as noncompensable (zero percent disabling)), (8) left shoulder scar (rated as noncompensable), (9) right knee limitation of extension (rated as noncompensable), and (10) left knee limitation of extension (rated as noncompensable). As such, the Veteran is in receipt of a 70 percent combined evaluation for this period of time. As the Veteran's right knee, left knee, lumbar spine disability, and left shoulder disability all affect a single body system, that is they are all orthopedic, they are considered a single disability for purposes of whether the Veteran has at least one single disability ratable at 40 percent or more. Thus, for the period from November 5, 2019, the Veteran is in receipt of a combined rating sufficient to meet the schedular requirements for a TDIU. Therefore, the remaining question is whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. After careful review of the record and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities have precluded him from securing and maintaining substantially gainful employment from at least November 5, 2019, the date the Veteran was awarded service connection for a lumbar spine disability. The evidence reflects that the Veteran completed his General Educational Development (GED). He reports that he last worked full-time in 2012 as a housekeeper and asserts that he stopped working as a result of impairments from his service-connected disabilities, to specifically include irritable bowel syndrome. See January 2016 and July 2021 VA Forms 21-8940. The medical evidence of record also confirms that he has not engaged in full time employment since 2012. See e.g., March 2020 VA mental disorders examination. Prior to his employment as a housekeeper, the Veteran worked as a security guard and part time as a parking lot attendant. See id. The Board finds that the medical documentation of record has provided credibility to the Veteran's claim that his service-connected disabilities are a major barrier to employment. In this regard, the VA examinations and treatment records for this appeal period reflect that the Veteran's service-connected bilateral knee and lumbar spine disabilities result in functional impairments with prolonged standing and walking. Specifically, the March 2020 VA knee examiner found that the Veteran's knee disability impacts his ability to work because the Veteran would have to avoid occupational tasks with prolonged walking or standing, kneeling, bending, or crouching. The examiner also stated that the Veteran's bilateral knee condition prohibits him from employment that requires significant physical tasks like prolonged walking, bending, and lifting, and that sedentary work would be more appropriate for him at this time. Significantly, the November 2019 VA back conditions examination reflects that the Veteran regularly used a cane for his low back pain and that the Veteran's lumbar spine disability impacts his ability to work as his disability manifests in an inability to sit, stand, or walk for long periods of time secondary to his low back pain. A December 2019 VA occupational therapist treatment record further reflects that the Veteran's physical deficits and lower back/left knee pain limit impact basic activities of daily living and instrumental activities of daily living. The evidence of record also shows that the Veteran's other service-connected disabilities impact his ability to work. For example, the Veteran reports that his service-connected irritable bowel syndrome impairs his work functioning as this disability manifests in incontinence and, as such, he fears soiling himself in public. See July 2021 VA Form 21-8940. A February 2021 VA treatment record confirms that the Veteran experiences mild fecal and urine incontinence. The July 2020 VA audiological examination additionally reflects that the Veteran's service-connected hearing loss and tinnitus impact his daily life, including his ability to work, because his hearing loss sometimes results in confusion and frustration during conversations and his tinnitus results in irritability from loud noises. In light of the above documented medical impairments and given the Veteran's educational and occupational background, the Board finds that from November 5, 2019, the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment. Although the Board acknowledges that the March 2020 VA mental disorders examination reflects that the Veteran's non-service-connected psychiatric disorder impacts his ability to work, the Board finds that the Veteran's service-connected disabilities alone preclude his ability to obtain and maintain substantially gainful employment from November 5, 2019. In this regard and as noted above, for this period of time, the Veteran's ability to perform physical work has been severely impaired due to his service-connected orthopedic disabilities. Specifically, the physical impairments related to the Veteran's service-connected bilateral knee disabilities impact his ability to maintain physical employment as he cannot engage in prolonged standing or walking. Additionally, the nature, frequency, and severity of the flare-ups he experiences due to his bilateral knees would likely impede workplace productivity in work requiring physical duties. To the degree that the Veteran would be able to perform less physical work, the Board finds that from a practical standpoint, the Veteran would be too limited to perform such alternative occupations given that his service-connected lumbar spine disability impacts his ability to sit for prolonged periods of time. Thus, the Board finds that the Veteran's lumbar spine disability affects his ability to obtain sedentary employment because this disability manifests in an inability to sit for prolonged periods of time. Accordingly, while no individual service-connected disability may have rendered the Veteran unemployable by itself, when considering the service-connected disabilities together, the evidence is at least in equipoise as to whether the Veteran would be unable to obtain or maintain gainful employment from November 5, 2019, which is the date the Veteran has been awarded service connection for his lumbar spine disability. Therefore, resolving reasonable doubt in his favor, entitlement to a TDIU is granted as of that date. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that although the Veteran is not service connected for a lumbar spine disability prior to November 5, 2019, the issue of entitlement to a TDIU for the appeal period prior to this date is still for consideration and requires additional development as discussed in the REMAND section of this decision below. REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities prior to November 5, 2019 The medical evidence reflects that the Veteran has applied for Social Security Administration (SSA) disability benefits as related, in part, to his service-connected disabilities. See March 2020 VA mental disorders examination (indicating that the Veteran was in a bicycle accident where he tore his rotator cuff and experienced incontinence and that he put in for social security and disability); December 2016 VA treatment record (reflecting that the Veteran is in the process of filing for SSA disability as he perceives himself as being ill equipped to maintain steady employment due to various medical/emotional problems including stool incontinence, diabetes, and emotional distress). To date, the Veteran's claims file does not contain any SSA disability records, nor does it appear that the AOJ attempted to obtain these records. Accordingly, as these records may be relevant to the Veteran's claim, a remand is warranted for the AOJ to obtain them. Additionally, in a July 2012 correspondence, the Veteran reported that he applied for unemployment insurance with the state of Hawaii and had been receiving unemployment benefits. The record also does not reflect that the AOJ attempted to obtain any of these unemployment records. Thus, on remand, the AOJ should also conduct development with respect to these records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any records in possession of the SSA that are pertinent to the Veteran's claim. Make a notation in the claims file of all attempts to obtain these records and all responses received. 2. Request the Veteran to either provide or authorize VA to obtain records regarding his application for and receipt of unemployment benefits from the State of Hawaii. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.