Citation Nr: 21070303 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 10-45 519 DATE: November 23, 2021 ORDER As of February 1, 2010, but no earlier, a total disability based individual unemployability due to service-connected disabilities (TDIU) on an extra-schedular basis is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT As of February 1, 2010, but no earlier, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW As of February 1, 2010, but no earlier, the criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to August 1972. In June 2011, the Board of Veterans' Appeals (Board) assumed jurisdiction over a claim of entitlement to a TDIU in connection with the appeal of a claim for an increased rating for a left shoulder disability, which stemmed from a rating decision issued in December 2008 by a Department of Veterans Affairs (VA) Regional Office. At such time and in March 2014, the Board remanded that claim for additional development. In May 2016, the Board denied entitlement to a TDIU, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Memorandum Decision, the Court vacated the May 2016 decision. In June 2018, the Board again denied entitlement to a TDIU, which the Veteran appealed to the Court. In February 2019, the Court granted a Joint Motion for Remand (JMR), vacating the June 2018 decision and remanding the matter for further adjudication. In August 2019, the Board denied entitlement to a TDIU, and the Veteran again appealed such decision to the Court. In March 2020, the Court granted a JMR, vacating the August 2019 decision and remanding the matter for further adjudication. Upon the case's return to the Board, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge in May 2021. A transcript of the hearing is associated with the record. In July 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 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). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides 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" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration (SSA) regulations). 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). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017), the United States Court of Appeals for Veterans Claims (Court) indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 or keep employment. The ultimate question, however, 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). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also 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. VA received the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) on October 19, 2011. However, the appeal period before the Board stems from receipt of the Veteran's increased rating claim for his left shoulder disability on September 30, 2008, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In regard to his education and work history, the record shows the Veteran's highest level of education is an Associate Degree in Public Relations. However, the Veteran testified at the hearing that it took him three and a half years to accomplish this two-year degree. With respect to his work history, his VA Form 21-8940 indicates he worked as a cook from 2003 to 2004, earning around $1,600 per month, as a maintenance worker from February 2007 to August 2007, earning around $900 per month, and as a cook from June 2009 to October 2009, when he indicated that he last worked full-time, earning $800 per week. A September 2009 Counseling RecordNarrative Report from the Veteran Readiness & Employment (VR&E) program similarly reflect that, following his separation from service, he attended Tallahassee Community College from 1979 to 1982 and obtained his Associate's degree in Public Relations. Thereafter, he worked in various cooking jobs until 2000 when he attended Roadmaster Truck Driving school, but such closed prior his completion of the program. The Veteran worked from FAMU DRS School from January 2003 to August 2003 making $1,280.00 a month and left because such was an OPS position. From August 2003 to July 2005, he worked as a cook for Aramk making $1,600.00 a month and left because such was seasonal work. From July 2005 to February 2007, the Veteran worked as a groundskeeper for FAMU making $1,209.00 a month and was laid off due to cutbacks. He then worked for Action Labor and Waffle House, but was arrested in November 2008 and was in jail until June 2009. Further, Social Security Administration (SSA) records reflect the Veteran's report that he worked full-time as a laborer through a temp agency from 1999 to 2007 off and on, in lawn maintenance at a university from 2000 to winter 2007, as a cook at Waffle House from 2008 to 2010 off and on, and in maintenance/as a cook at a hotel in June 2013. However, such agency determined that, as the Veteran's disabilities, to include his left shoulder and bilateral foot disabilities, first interfered with his ability to work as of February 1, 2010, and he only worked at the hotel for one month in 2013 with a gross income of $315.00, the potential onset of disability was considered February 1, 2010. In light of the foregoing, the Board finds that, while the Veteran reported that he last worked full-time in October 2009 in connection with his claim for a TDIU, SSA records show that he reported additional full-time employment to February 1, 2010. However, since such date, he has not been employed in a substantially gainful occupation. In this regard, consistent with SSA's determination, the Board finds that the work that the Veteran performed in June 2013 is no more than marginal in nature as such lasted one week and provided a salary well below the poverty threshold. For the entire appeal period, the Veteran's service-connected disabilities include the following: residuals, status post left shoulder surgery with bone density, left proximal humerus, minor, evaluated as 20 percent disabling, with a separate 20 percent rating assigned for limitation of motion; symptomatic flat feet, evaluated as 10 percent disabling; bilateral mild degenerative arthritis first metatarsophalangeal joints and mid tarsal area, evaluated as 10 percent disabling; and postoperative residuals scar, status post left humerus chondroma removal, evaluated as 10 percent disabling. Such evaluations result in a combined disability rating of 50 percent for the entire period and, as such, the Veteran does not meet the schedular threshold for a TDIU at any time during the pendency of the appeal. Nevertheless, as noted above, if it is shown that the Veteran is rendered unemployable by reason of service-connected disabilities, the Board may refer the case to the Director for extra-schedular consideration. 38 C.F.R. § 4.16(b). In this regard, the Director provided an advisory opinion unfavorable to the Veteran's claim in September 2021. Therein, the Director, in relevant part, noted the Veteran's education and work history, and found pertinent that SSA denied entitlement to disability benefits and determined the Veteran was able to work through September 30, 2013. Additionally, the Director noted the Veteran's service-connected disabilities could have a functional impact, to include limitations to prolonged ambulation and impair prolonged activities, but found that there were many jobs in the workplace that required only light activity. Further, technological advances had broadened employment opportunities for the disabled with reasonable accommodations that were not previously available. The Director found there was no evidence of the Veteran's inability to perform sedentary employment due to his service-connected disabilities and the evidence failed to support a finding that any of the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment. Conversely, a private vocational expert, J.C., opined in an April 2018 Vocational Assessment that the Veteran had been restricted to sedentary unskilled work due to his service-connected disabilities since at least October 2009. In providing the opinion, J.C. noted the Veteran's specific service-connected disabilities, reported a review of the record, with citation thereto, and conducted a telephone interview with the Veteran. J.C. described the Veteran's symptoms and limitations attributable to his service-connected disabilities as the following: cannot stand or walk more than 30 minutes without stopping to rest due to bilateral foot pain; elevates legs throughout the day to alleviate pain and swelling of his feet; regular use of orthotics; cannot lift or carry 50 pounds or greater due to left shoulder pain; and cannot reach over head with left upper extremity due to left shoulder pain. J.C. also noted that the Veteran's only civilian occupational experience was that of a cook, maintenance worker, and construction worker and he felt that he was unable to perform those types of work due to the limitations of his service-connected conditions. J.C. found the Veteran would be precluded from work above the sedentary physical demand level due to his symptomatic flatfeet and bilateral mild degenerative arthritis of the first metatarsophalangeal joints and mid tarsal area. In addition, J.C. determined the Veteran was further precluded from engaging in substantially gainful employment by his status post left shoulder surgery residuals, which rendered him unable to lift over 50 pounds and restricted his ability to reach overhead. J.C. further noted that the Veteran's civilian occupations did not consist of skills that readily transferred to sedentary work. In particular, the Veteran lacked basic computer skills, which most employers expected of entry-level applicants for sedentary work. In conclusion, J.C. opined the Veteran's inability to stand and walk for prolonged periods was inconsistent with the expectations of competitive employment at or above the light physical demand level. Further, the Veteran did not have transferable skills to work at the sedentary physical demand level, and a residual functional capacity to unskilled sedentary work greatly eroded much of the national occupational base. Additionally, while the Veteran failed to report for VA examinations scheduled in November 2008 and August 2010, a September 2010 VA examination revealed a gradual decrease in the Veteran's ability to use his left shoulder and a significant increase in pain, stiffness, and weakness in the left arm. The Veteran reportedly experienced constant, daily pain and his left shoulder was severely limited in its use. The VA examiner noted the Veteran was unable to perform many household and work-related duties when he was experiencing a flare-up of his left shoulder symptoms. Notably, the VA examiner also determined the Veteran was no longer able to perform many work-related tasks due to pain in his left shoulder and that pain and stiffness prevented him from working in his field (cook/carpentry). In June 2012, the Veteran failed to report for additional VA examination; however, in September 2012, a VA clinician examined him and found his pes planus and arthritis should not preclude employment or occupational duties with respect to light or sedentary activities. Specifically, a desk job "with only very limited walking and standing" would be reasonable. Additionally, he had no functional limitation related to his service-connected scar. Further, although he would need some adjustments to accommodate his limitations, to include minimal lifting or reaching overhead and no lifting more than 50 pounds, light duty and sedentary activity were not precluded by the Veteran's left shoulder disability. His muscle strength and manual dexterity were normal, and he could perform a sedentary or desk job that was not physically stressful. VA treatment records dated in February 2013 show the Veteran had started working construction again to help his family make ends meet; however, he had fainted twice at work. Additionally, the record indicates the Veteran, as part of the VA VR&E Revolving Fund, was slated to enroll in the Culinary Arts program at Keiser College in April 2013, which he would complete in December 2014. However, such vocational plan was redeveloped in August 2013 as it was no longer feasible due to his service-connected disabilities. The redeveloped plan was for the Veteran to complete a certificate training program in the area of commercial photography in May 2015. In a March 2014 letter, a VA physician opined that the Veteran had "ongoing medical problems which prevent him from being employed." Additionally, an August 2016 narrative report shows the Veteran's rehabilitation plan was redeveloped due to a lack of jobs in the area, and he changed his career goal to barber. Unfortunately, the Veteran was diagnosed with cancer during this time, and, in August 2017, the VR&E department proposed to end his participation in the program as his return to the program could not be discerned. The Veteran had missed several appointments and failed to maintain engagement in the program. The question of employability is ultimately a legal one, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this regard, upon review of the foregoing evidence, the Board resolves all doubt in the Veteran's favor and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of February 1, 2010, the date he last worked full-time. Here, the medical evidence clearly indicates the Veteran's service-connected disabilities prevent his ability to work in occupations requiring more than light or sedentary activity. In this regard, his work history is mainly comprised of unskilled, manual labor positions, which would necessitate more than light or sedentary activity. Moreover, the record shows his multiple attempts to engage in sedentary employment, to include educational pursuits, which would accommodate his physical limitations, were unsuccessful. In this regard, the Board affords the April 2018 Vocational Assessment significant probative value. In particular, J.C. determined the Veteran did not have transferable skills to work at the sedentary physical demand level and such a residual functional capacity to unskilled sedentary work greatly eroded much of the national occupational base. Consequently, the Board resolves all doubt in favor of the Veteran and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his level of education (Associate Degree) and history of manual work as of February 1, 2010, the date he reported that he last worked full-time. Therefore, a TDIU on an extra-schedular basis is warranted as of such date, but no earlier. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.