Citation Nr: 21070664 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-40 694 DATE: November 24, 2021 ORDER From November 22, 2011, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT As of November 22, 2011, the functional impairment from the Veteran's service-connected disabilities is of such severity so as to preclude all forms of substantially gainful employment for which the Veteran's education and occupational experience would otherwise make him qualified. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1991 to November 1994. He is a Veteran of the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) Under Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that entitlement to a TDIU may be considered an included claim in connection with the Veteran's assigned ratings for PTSD based on the fact that his formal claim for TDIU was received within one year of the rating action that originally assigned those ratings in January 2016, effective as early as November 22, 2011. Total disability ratings for compensation 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a). Marginal employment shall generally be 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. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). TDIU is considered a rating and not a disability. Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). As such, the assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400(o)(1). When determining whether a Veteran is "unable to secure and follow a substantially gainful occupation," the Veteran's history, education, skill, and training are taken into account. The Veteran's physical and mental abilities are also considered. As to physical abilities, relevant factors include limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, and audio and visual limitations. As to mental abilities, relevant factors include limitations as to memory, concentration, reliability, and productivity, along with the ability to adapt to change, handle workplace stress, and get along with coworkers. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran's age or impairment caused by nonservice-connected disabilities are not considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The question of whether a Veteran is considered capable of substantial gainful employment is not a medical determination; it is a legal determination for the adjudicator to decide on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). The focus is not on whether the Veteran is unemployable due to his service-connected disabilities but on the level of functional impairment caused solely by his service-connected disabilities. Schedular TDIU As of November 22, 2011, while there was no individual disability assigned a 40 percent rating, the Board finds that the Veteran's back disorder, the bilateral radiculopathy ratings, and the bilateral factor for those disabilities may be combined to establish the 40 percent rating for one disability under 38 C.F.R. § 4.16. Consequently, since the service-connected disabilities combined to 70 percent as of November 22, 2011, the Board finds that the Veteran met the schedular requirements for TDIU as of that date. Thus, the remaining issue is whether the Veteran is entitled to a TDIU for the entire period he met the schedular criteria for entitlement to a TDIU. The Veteran was afforded a VA examination in December 2012 for his back disorder. The examiner diagnosed degenerative disc disease and sciatica, bilateral legs. The Veteran reported that "When I sit for long periods of time my legs really hurt and then they start to get numb." As to functional impact, the examiner stated, "The Veteran would not be able to maintain full time gainful employment as he would not be able to perform physical labor with lumbar pain and bilateral sciatica. He would only be able to perform a part-time sedentary position as he is not able to sit for long periods of time and would need frequent breaks." In his VA Form 21-8940 submitted on January 9, 2014, the Veteran indicated that he was last employed in 2010 when he was terminated due to excessive absences. He stated that his lower back disability prevented him from securing or following any substantially gainful employment. The Veteran was afforded a VA examination in June 2014 for his back disorder. He was diagnosed with lumbar disc disease and degenerative disc disease of the lumbar spine. Degenerative arthritis of the spine and intervertebral disc syndrome were noted. Mild to moderate radiculopathy was noted bilaterally. The Veteran reported that he is able to sit for only a few minutes at time due to pain. The examiner described the functional impact, noting that the Veteran stated that he quit his part-time job in in 2010 as he was calling in sick frequently. His job required prolonged standing at counter and lifting heavy parts such as batteries. He did not want to get fired, so he quit. The examiner noted that the Veteran cannot do a physical job that requires frequent bending and lifting but can do a sedentary job if he is allowed to "get up frequently from chair." Under the criteria set froth in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the examiner noted that pain, weakness, fatigability or incoordination could significantly limit functional ability during any flare-ups or when the joint is used repeatedly over a period of time. He explained that the Veteran's pain will decrease function of the spine with repeated movement or during spasm. The Veteran was afforded a VA examination for PTSD in September 2015. It was noted that his PTSD causes occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was 18 years old when he joined the military and did not have any prior work or occupation. The Veteran reported that he quit his post-service jobs due to his back disability. He stated that he continues to have intrusive memories of his residence in Somalia being shot down shortly after they had left and after that, they realized they were being watched and were very close to being killed. He was diagnosed with PTSD and is on medication. Symptoms were noted as anxiety, panic attacks that occur weekly or less often, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and additionally impaired impulse control, such as unprovoked irritability with periods of violence. In his VA Form 21-8940 submitted on August 29, 2016, the Veteran provided further details of his employment, indicating that he last worked full time on January 1, 2008. He worked part time from January 1, 2008, to January 1, 2010, earning $9 per hour, and became too disabled to work and last worked on January 1, 2010. The Veteran submitted a statement in December 2017. As to back pain and sciatica pain, he stated that he took many days off because he was in too much pain to work, leading to job loss. His sciatica is described a dull aching pain that never goes away and it makes it hard to walk more than a block or two before he has to sit down and rest. He feels pain when he stands after about 15 minutes and his legs go numb. He feels pain when sitting after 20 minutes and sometimes sooner. He stated that the only way the pain feels better is if he lays down with his legs elevated. As to his PTSD symptoms, he stated that he has nightmares and feels like he is still in Somalia. It is difficult to sleep. He has a lot of bad memories of his deployment. These interrupt all of his other thoughts. He has problems with his memory and concentration. He stated that he gets irritated easily. The Veteran's partner and mother of his child also submitted a statement. She indicated that they knew each other for nine years and lived together for almost seven years and she has seen how his PTSD, back pain, and pain in his legs have affected his daily life and prevent him from working. She stated that his back causes him to be in pain every minute of every day and it has worsened over several years. It is hard for him to move around and hurts for him to sit for a long period of time. Usually, he is laying down to help his back. It is very painful for him to get out of a chair. He also feels pain in his legs radiating from his lower back. It hurts to sit for a long time because of the pressure on his lower back and legs. He has a hard time walking, and has to frequently stop and rest. She stated that he has nightmares about his deployment to Somalia and cannot go back to sleep. He sometimes goes two nights without sleeping and his PTSD symptoms flare-up. He then isolates himself for days or weeks, one time for two months. She stated that sometimes he becomes aggressive, such as when things don't go his way. He gets irritated and upset if he has to explain things and people don't understand. She stated that one day, she came home and he was upset because his doctor told him he could not work and began yelling and threw a chair across the room. A private vocational expert's opinion was submitted in May 2018. During the vocational assessment that was held telephonically on April 13, 2018, the Veteran reported post-service employment and job loss. He indicated that he left the first job that he held post-service in 1995 to 1996 because of his back disability, and because of verbal altercations with supervisors, and missing too many days of work due to his chronic pain. He then obtained is CDL license in 1997 and obtained employment in 1998 through a temporary employment agency. He reported that he was terminated due to the number of missed days due to his chronic back pain. The Veteran began a position in 1998 and worked until 2002 when he left due to poor attendance caused by his chronic back pain. He then worked for an auto parts store and again had poor attendance due to back pain. He left this particular job in 2010 and that was the last time he worked. The vocational expert stated that the Veteran's persistent, chronic symptoms interfere with his ability to participate in daily life and work activities. The vocational expert stated that it is at least as likely as not that the Veteran's service-connected disabilities would prevent him from securing or maintaining substantially gainful employment. She stated that her opinion was based on symptoms documented in VA examinations, treating provider records, vocational rehabilitation notes, the telephone assessment, the Veteran's statements, and the buddy statement. She stated that after reviewing the Veteran's educational and work history, he does not have current and transferable skills that would allow him to obtain or maintain employment in a sedentary work capacity. He is limited in his ability to perform physical tasks and is also limited in his ability to sit for sedentary tasks. She observed that even if a job allows him to change positions, chronic pain and the time needed to rest and recover precludes him from being a productive, reliable employee. She provided the opinion that the Veteran's service-connected disabilities have rendered him unemployable since 2010. The Veteran then testified at a hearing before the Board in April 2021. He stated that he is not capable of working a sedentary job because he has a hard time sitting down for an extended amount of time due to the pain that radiates down his legs from his back disability. His ability to stand for long periods of time is also affected. He stated that he can drive or sit in a car for thirty minutes before he has to stop and get out of the car to alleviate the pain in his back and legs. The Veteran further testified that he last worked for advance Auto Parts until 2010. It was a part-time position. His job duties included opening and closing the store, making deliveries, assisting with customers, and installing batteries. He also did administrative work. He found it difficult to work in an office environment because of his constant need to move around due to the pain in his back and legs. He reported that his manager told him that he needed to sit still; he moves around too much. He explained to his manager that this was due to his back and leg pain. He was unsure whether she understood. He stated that he quit because of his back symptoms; he felt he was going to be terminated for attendance because he missed many days due to his back pain and keeping his appointments at the VA. Prior to this job, the Veteran stated he worked in temporary jobs, as a driver and forklift operator in a warehouse position from 2007 to 2008. He had to stop working due to his back pain. He stated that his doctors at the VA recommended that he not do truck driving or forklift driving because of his back. Prior to these temporary jobs, the Veteran stated that he worked at Frito-Lay as a "box drop," making boxes and putting them in the machines. He then became a "break relief" which was mostly office work. He stated that he was terminated for attendance reasons due to his back injury because he was missing too many days. He stated that he was on medical leave, and in and out of the VA. He stated that over the last 10 years that he worked, he worked continuously but every job ended either because of termination or leaving due to his back disability. The Veteran He described experiencing pain while laying down in any position and stated that he has a hard time getting restful sleep due to pain and nightmares about his service that are related to his PTSD. He stated that his PTSD also affected his interaction with coworkers. He stated that he was "very direct and upfront" and people didn't like that. He stated he is very standoffish and lack of sleep makes it difficult to keep his temper in check; he becomes irritable. He has difficulty concentrating after a rough night's sleep. The Veteran stated that his last full-time job was for Frito-Lay. He stated that at Advance Auto, a part time position, he was paid $10 an hour and worked approximately 30 hours per week. He stated that he has a CDL with endorsements. He was going to school for aircraft structural but had to change that because the job entailed a lot of bending and working inside the wings of airplanes and he could not do that. He was in school for accounting but that became very hard also. The Veteran's representative noted that a private vocational expert report found that the Veteran is not able to secure or follow a substantially gainful occupation. He contrasted the private vocational expert's finding with the VA examiner's finding that the Veteran was able to work a sedentary job. The Board notes that a finding of an ability to work is not a medical determination made by a medical examiner, but is a legal determination made by the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board further notes that in Withers v. Wilkie, 30 Vet. App. 139 (2018), the Court of Appeals for Veterans Claims held that where a veteran's ability to perform sedentary work is the basis for a Board's decision concerning entitlement to a total disability evaluation due to individual unemployability (TDIU), the meaning of sedentary work must be determined from the particulars of the medical opinion asserting such. The Court noted that although 38 C.F.R. § 4.16 does not make the concept of sedentary work an explicit TDIU factor, if the Board bases it denial of TDIU in part on the conclusion that a Veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case. The Board must explain this meaning and how the concept of sedentary work factors into the veteran's overall disability picture, vocational history, and ability to secure or follow substantially gainful occupation. The Court further held that before the Board can rely on an examiner's finding that a Veteran is capable of sedentary work to deny TDIU, it must also ensure that the finding is consistent with the entirety of the medical evidence. The Board finds that the VA examiner's medical opinion that the Veteran is capable of sedentary work is unsupportable by the medical evidence and inconsistent with the examiner's medical findings. The examiner acknowledges that the Veteran cannot sit for longer than 30 minutes without moving around, and is also incapable of standing for long periods of time. The examiner did not address whether any such occupation exists and the Board cannot identify a job that would enable the Veteran to move from sitting to standing every 30 minutes. In addition, the Board notes the Veteran's competent and credible assertion that such need to frequently move around causes a break in concentration and focus. In addition, the Veteran testified that his attempts to maintain his job by alleviating his pain through moving from sitting to standing were discouraged by at least one manager and contributed to his job loss. Due to its inconsistency with the medical evidence of record, and the Veteran's testimony and statements, the Board finds that the examiner's opinion outweighed by the medical evidence in the record and the supporting evidence cited in the private vocational expert's opinion. The Board finds that the Veteran is not capable of performing a sedentary job due to his service-connected disabilities. After giving consideration to all relevant evidence, including, but not limited to the Veteran's education, training, and work history, the Board finds that the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment from November 22, 2011, the date that he met the schedular requirements for a TDIU. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.