Citation Nr: 21068857 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 05-25 624 DATE: November 15, 2021 ORDER From May 3, 2002 through July 8, 2010, a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDING OF FACT From May 3, 2002 through July 8, 2010, the Veteran was unable to maintain substantially gainful employment as a result of service connected disabilities. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU, pursuant to 38 C.F.R. § 4.16(b), have been met from May 3, 2002 through June 22, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU, pursuant to 38 C.F.R. § 4.16(a), have been met from June 23, 2010 through July 8, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1983 to February 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in March 2020, where the issue on appeal was denied. The Veteran appealed the March 2020 Board decision denying an earlier effective date for a TDIU to the United States Court of Appeals for Veterans Claims (Court). In an Order dated July 2021, the Court granted a Joint Motion for Remand (JMR), which remanded the TDIU issue on appeal back to the Board for development consistent with the JMR. Per the JMR, the parties agreed that the Board failed to provide adequate reasons and bases for its finding that the Veteran could perform sedentary employment prior to July 8, 2010. The JMR did not disturb the other issues addressed in the March 2020 Board decision, and they are no longer on appeal. As the instant decision grants a TDIU for the entire relevant rating period on appeal, no further discussion of JMR compliance is necessary at this time. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants a TDIU for the entire remaining rating period on appeal, no further discussion of VA's duties to notify and assist is necessary. TDIU from May 3, 2002 through July 8, 2010 is Granted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for consideration under § 4.16(b) criteria. It is the established policy of VA 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. Submission to the Director, Compensation and Pension Service (Director), for consideration under § 4.16(b) is warranted in all cases of veterans who are unemployable by reason of service connected disabilities, but whose disabilities do not meet the combined rating percentage standards set forth in § 4.16(a). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. 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 a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In a May 2012 rating decision, the RO granted entitlement to a TDIU from July 8, 2020. The TDIU grant was based upon the findings of a VA examiner at the time of a July 2010 VA knee examination. Specifically, the VA examiner opined that the Veteran's bilateral knee symptoms would be profoundly limiting due to pain. The VA examiner opined that it was statistically unlikely there were any available jobs that the Veteran would be able to work due to the service-connected knee symptoms. Throughout the course of this appeal the Veteran has argued that the symptoms warranting a TDIU were present prior to July 8, 2020. At the outset the Board will address the TDIU rating period on appeal. In its March 2020 decision, the Board found that the TDIU rating period began from May 3, 2002, the date of increased rating claim. At that time the Board noted some conflicting evidence concerning whether the Veteran had been employed at any point during the relevant rating period; however, the Board did find that the Veteran has been largely unemployed throughout the period on appeal. In the July 2021 JMR, the parties agreed that the Board had previously found that the Veteran had been unemployed during the entire period on appeal. The Board will not disturb this favorable finding. During the rating period from May 3, 2002 through July 8, 2010, the Veteran was service connected for various back and right and left knee disabilities. From May 3, 2002 through June 22, 2010, the disabilities did not meet the combined rating percentage rating requirements of 38 C.F.R. § 4.16(a) for eligibility for a TDIU. From June 23, 2010 through July 8, 2010, the knee and back disabilities did meet the combined rating percentage rating requirements of 38 C.F.R. § 4.16(a) for eligibility for a TDIU. In a December 2007 Remand, the Board found that an April 2005 VA medical opinion, discussed in further detail below, warranted remanding the issue of a TDIU to the Director for consideration under 38 C.F.R. § 4.16(b). In February 2013, the Director found that a TDIU was not warranted pursuant to 38 C.F.R. § 4.16(b) during the relevant rating period on appeal. The Board is not bound by the Director's February 2013 advisory decision, so will exercise its de novo review authority to decide whether a TDIU is warranted in this case for the rating period on appeal. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). VA obtained a retrospective TDIU opinion in August 2019. Per the opinion report, prior to July 8, 2010, the Veteran's service-connected orthopedic disabilities would have prevented physical employment. The VA examiner did find that the Veteran would have been able to perform sedentary job duties such as answering a phone or using a computer, so long as the Veteran was allowed to reposition as necessary; however, there was no explanation as to what constituted "repositioning." Contrarily, a VA examiner in July 2010 opined that, while it may be possible that there are jobs that could meet the restrictions imposed by the service-connected orthopedic disabilities symptoms, realistically such jobs do not exist. Effectively, the VA examiner in July 2010 opined that there are no sedentary positions that would allow the extent of "repositioning" that would be required by the Veteran. The Board finds this contemporaneous evidence to outweigh the VA retrospective opinion rendered approximately nine years later. Per a November 2001 Social Security Administration (SSA) examination report, the SSA examiner assessed that the orthopedic disability symptoms prevented the Veteran from engaging in the full range of sedentary work. As such, the SSA examiner assessed the Veteran to be disabled. Significantly, the evidence of record contains an April 2005 VA treatment record in which the Veteran sought treatment for bilateral knee disability symptoms. Upon examination of the Veteran and review of X-rays, the VA physician informed the Veteran that the arthritic knee changes were "clinically sufficiently severe to make him unemployable at the present time." This opinion was rendered by the Veteran's treating VA physician following a routine examination for treatment purposes. (Continued on the next page) As discussed above, in December 2007 the Board found the April 2005 VA treatment record to be significant enough to warrant referral to the Director for consideration of a TDIU under 38 C.F.R. § 4.16(b). In other words, the Board has previously found that the April 2005 VA treatment record supported that the service-connected orthopedic disabilities were severe enough to prevent the Veteran from maintaining substantially gainful employment. Subsequent development does not contradict the Board's prior favorable findings. Considering all the evidence of record, to include the November 2001 SSA examination report, the April 2005 VA treatment record, and the July 2010 VA examiner opinion, along with the Veteran's various lay statements throughout the course of this appeal, the Board finds that, from May 3, 2002 through July 8, 2010, the service-connected orthopedic disabilities prevented the Veteran from maintaining substantially gainful employment. As such, upon resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU pursuant to 38 C.F.R. § 4.16(b) is warranted from May 3, 2002 through June 22, 2010, and a TDIU pursuant to 38 C.F.R. § 4.16(a) is warranted from June 23, 2010 through July 8, 2010. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.