Citation Nr: 21070101 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-44 493 DATE: November 23, 2021 ORDER 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 24, 2017, is denied. 2. Entitlement to a TDIU rating from July 1, 2020 is granted, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. Prior to October 24, 2017, the Veteran's service-connected disabilities (IVDS, rated 40 percent; radiculopathy, right lower extremity, 20 percent; and residuals of a left thumb injury, 10 percent) were rated 60 percent, combined, but were not shown to have been of such nature and severity as to preclude his participation in regular substantially gainful employment consistent with his education and experience. 2. From July 1, 2020 his service-connected disabilities (prostate carcinoma, rated 40 percent; IVDS, 40 percent; right lower extremity radiculopathy, 20 percent; left lower extremity radiculopathy, 10 percent; and residuals of a left thumb injury, 10 percent) are rated 80 percent, combined, and are reasonably shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Prior to October 24, 2017, the schedular rating criteria for a TDIU rating were met, but a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), 4.18, 4.25. 2. From July 1, 2020, the schedular rating criteria for a TDIU rating are met and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1971 to February 1974 and from January 1975 to January 1996. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2015 Department of Veterans Affairs (VA) rating decision (which denied a rating in excess of 40 percent for the Veteran's service connected low back disability). In his August 2017 VA Form 9, he requested a Board hearing, and was scheduled for such hearing in March 2020. In March 5, 2020 dated correspondence, his representative (on behalf of the Veteran) withdrew the hearing request. A June 2020 Board decision denied entitlement to a rating in excess of 40 percent for IVDS and remanded to the AOJ for development and adjudication the matter of entitlement to a TDIU rating (found to have been raised in the context of the claim for increase). A January 2021 rating decision denied a TDIU rating. [The Board notes the Veteran's August 2021 statement (questioning rejection of his Decision Review Request: Higher Level Review (HLR) as untimely) since he filed it 6 months after the issuance of the January 2021 SSOC regarding the matter of a TDIU rating). For AOJ to consider his HLR request, he had to file a VA Form 20-0996 within 60 days from the issuance of the January 2021 SSOC. He filed the request on June 1, 2021 (well beyond the 60 day limit, and therefore cannot opt-into the AMA system). It is up to Veterans Benefits Administration's (VBA) discretion whether to accept or deny such request. Accordingly, the Board will adjudicate this matters in the Legacy system.] [From October 24, 2017 to July 1, 2020, the Veteran's service-connected disabilities included one assigned a 100 percent schedular rating (prostate cancer) and he was awarded special monthly compensation (SMC) K-1 (for loss of use) and S-1 (at the housebound rate). Therefore, from October 24, 2017 to July 1, 2020 the matter of entitlement to a TDIU rating during is moot, and will not be addressed; the issues are characterized accordingly.] Legal Criteria A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to maintain a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. In determining whether the schedular rating requirements for TDIU are met, all disabilities of a single system (such as musculoskeletal) or common etiology (e.g. diabetes and complications of the disease) are considered to be a single disability, when combined). 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (CAVC) 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." The sole fact that a claimant 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 and keep employment. The dispositive question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Since the TDIU claim was raised in the context of an increased rating claim (a rating in excess of 40 percent for IVDS), it is part of the claim for benefits for the underlying disability and an attempt to get an appropriate higher rating for that disability. Therefore, the period for consideration begins one year prior to June 18, 2015 (the date on which the Veteran filed a claim for increased rating for IVDS).] 1. Entitlement to a TDIU rating from prior to October 24, 2017 is denied. Throughout the period on appeal prior to October 24, 2017 the Veteran's service-connected disabilities (IVDS, rated 40 percent; radiculopathy, right lower extremity, 20 percent; and residuals of a left thumb injury ) were rated 10 percent, combined. Because the disabilities are all of the musculoskeletal system, the 60 percent (combined) rating meets the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a). Accordingly, the analysis turns to whether the Veteran's service-connected disabilities were of sufficient severity to render him incapable of employment, so as to warrant referral for consideration of an extraschedular TDIU rating. See 38 C.F.R. § 4.16 (b). The Board finds that the evidence of record does not support that prior to October 24, 2017 the Veteran's service-connected disabilities were of such nature and severity as to preclude substantially gainful employment. In a July 2020 VA Form 21-8940 (TDIU application), the Veteran reported that he last worked in April 2016, when he was working 40 hours per week as a trainer in the U.S. Army. He reported completion of four years of college (with a bachelor's degree in history and criminal justice) and denied having additional education or training. A June 2014 VA treatment record (from his primary care provider) notes that he needs to sit down and "stretch out" (to relieve lower pain back and right lower extremity symptoms) when he walks 12 mile (or sometimes less). He reported that prolonged sitting at work makes it hard for him to get up and that he can no longer: cut down trees, engage in roofing, paint ceilings, build/repair decks, and put up drywall. He stated that he worked full-time in a non-physical position and missed 3-4 days every 3 months due to lower back pain. On September 2015 VA treatment record notes the Veteran was advised to avoid lifting items weighing over 20 lbs. On May 2017 VA back examination, the examiner noted that the Veteran's back disability limited range of thoracolumbar motion and prolonged walking/climbing stairs and caused difficulty with heavy lifting/bending due to stiffness. In an October 2020 VA Form 21-4192, the Veteran's former employer explained that he worked as a training specialist 40 hours per week from March 2000 until his retirement in April 2016. The employer did not report any concessions made for age or disability. The employer reported the reason for termination of employment was retirement (and did not specify that it was due to disability). Social Security Administration (SSA) records received in January 2021 explain that the Veteran's prostate cancer, lumbar degenerative disc disease, right leg and left thumb problems did not affect his ability to complete work tasks. SSA acknowledged that while he may no longer be capable of performing heavy work, he could still meet many of the physical demands of work. The Board acknowledges that prior to October 24, 2017, the Veteran was able to engage in light physical activities at work. (Notably, he was able to work as a trainer from March 2000 up until his retirement in April 2016 (almost two years after the period for consideration herein began).) Contemporaneous treatment records and VA examinations show that he was capable of participating in some light physical employment and sedentary employment. [The Board acknowledges the U.S. Court of Appeals for Veterans Claims decision in Withers v. Wilkie, 30 Vet. App. 139, 147 (2018), and notes that one definition of 'sedentary' is sitting habitually, or pertaining to a sitting posture. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, p. 1686 (32nd Ed. 2012). As used here, the Board considered such employment to include work that is done primarily while seated, with allowances for standing or some walking, as needed, and excludes work that requires prolonged standing or walking or bending or heavy lifting and with opportunity to adjust seating positioning.] For example, a June 2014 VA treatment record notes that he needs to sit down and stretch out when he walks less than 1 mile and September 2015 VA treatment record notes that he could lift items lighter than 20 lbs. The Board finds that as used here sedentary employment means work that is primarily done seated, with (perhaps interspersed with brief periods of standing and walking short distances,). The mere fact that the Veteran's service-connected disabilities have an impact on his employability is not sufficient to find that they rendered him unemployable. The disability ratings for the service-connected disabilities are recognition that impairment due to such disabilities may make it difficult for him to work. The critical question, however, is whether he is capable of performing the physical and mental acts required by any regular substantially gainful employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 38 C.F.R. § 4.16(b). The more probative evidence in the record shows that prior to October 24, 2017, while the Veteran, due to his service-connected disabilities, was likely precluded from engaging in occupations requiring heavy/strenuous physical labor, he was not precluded from participating in the less physically demanding types of employment which could be performed primarily seated (with some brief standing or short walking, and allowances for rising and stretching and seating positioning). His college education reflects that he has the basic skills in engage in office-type work. Furthermore, the Veteran's occupational experience of 16 years as a training specialist in the U.S. Army suggests he is quite capable (from education and experience) of maintaining employment office -type management positions (e.g., engaging in or supervising office work such as telephone or on-line sales, or responding to inquiries or complaints. The SSA determination denying the Veteran SSA disability benefits has probative value in this matter only to the extent that evidence considered in that decision shows the impact the Veteran's service connected disabilities had on his employability. Regardless, their conclusion does not support the instant claim. The preponderance of the evidence is against a finding that, prior to October 24, 2017, his service-connected disabilities, alone, prevented him from participating in regular substantially gainful employment consistent with his education and occupational experience. Thus, the preponderance of the evidence is against this claim with respect to the period prior to October 24, 2017. The benefit of the doubt rule does not apply; the appeal in the matter must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU from July 1, 2020 is granted, subject to the regulations governing payment of monetary awards. Throughout the period on from July 1, 2020, the Veteran's service-connected disabilities have included prostate cancer, rated 40 percent; IVDS, 40 percent; right lower extremity radiculopathy, 20 percent; residuals of a left thumb, rated 10 percent; and left lower extremity radiculopathy, 10 percent; are rated 80 percent, combined; and meet the schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a). On February 2018 VA prostate cancer examination, the Veteran reported that it was embarrassing to talk about his occasional incontinence of bladder and urinary frequency; he needed to wear briefs at night. He stated that he had to take a change of clothes everywhere with him (when he travelled away from home). On December 2018 VA back condition examination, the Veteran reported that his back disability impacts his ability to work (interferes with bending, tying shoes, lifting, walking, standing and sitting), and that he found it difficult to check on whether drill sergeants were training soldiers properly. On May 2019 VA prostate cancer examination, the Veteran indicated that he must be near a bathroom during the day (due to frequent urgent urination), and was fatigued most days due to frequent awakening at night, to urinate. On January 2020 VA prostate cancer examination, the examiner checked the box "no" for "prostate cancer did not impact [the Veteran's] ability to work." On August 2020 VA prostate cancer examination, the Veteran reported that he did not leave his home much due to incontinence and required changes of absorbent material more than 4 times a day. On September 2020 VA back condition examination, the Veteran reported that he has difficulty with prolonged standing/walking/climbing stairs and bending to lift objects due to his lumbar spine disability. The examiner noted that he was able to perform light work duties. The Veteran had been employed as a training specialist in the U.S. Army for 16 years. His service-connected disabilities (specifically prostate carcinoma and IVDS) adversely impact his ability to maintain both physically demanding work (because IVDS precludes heavy lifting, prolonged standing, prolonged walking and climbing stairs) and sedentary work (because prostate carcinoma is disrupted by frequent bathroom trips for urination, frequent, more than 4 times a day, changes of absorbent material, and frequent change of clothes). (The Board acknowledges that the January 2020 VA examiner checked "no" for "prostate cancer did not impact his ability to work." The Board finds that this opinion is an outlier and thus, not persuasive evidence of the impact of prostate cancer residuals on his ability to work (medical evidence otherwise clearly established that his prostate cancer negatively impacts on his ability to work). Furthermore, disturbed sleep from frequently rising to urinate at night would impact on his ability to concentrate and stay alert on a job (on May 2019 VA examination it was noted that he was fatigued most days due to frequent urination at night). Although VA examiners have indicated on multiple examinations that he should be able to perform light work duties, the evidence persuasively shows that the service-connected disabilities, taken as a whole, are such that they preclude him from maintaining any regular, substantially gainful employment. The Board finds that while the opinions indicate that the service-connected disabilities individually do not preclude employment, their cumulative effect is such that he would be unable to maintain regular substantially gainful employment consistent with his education and work experience. Considering the foregoing, the Board finds it reasonably shown that from July 1, 2020, the Veteran's service-connected disabilities result in limitations incompatible with regular substantially gainful employment consistent with his education and work experience. Accordingly, the criteria for establishing entitlement to a TDIU rating are met from July 1, 2020; and a TDIU rating is warranted from that date. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.