Citation Nr: 21070976 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-59 819 DATE: November 29, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a disability of the jaw is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for residuals, olecranon bursitis and tendonitis, right elbow is remanded. FINDING OF FACT The Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1984 to February 2004. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In this decision, the Board grants entitlement to a TDIU. The agency of original jurisdiction (AOJ) will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran became unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. This preserves the appellant's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Entitlement to a TDIU The Veteran seeks entitlement to a TDIU. The applicable period for consideration is from August 27, 2014, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400(o)(2). A TDIU may be assigned where the schedular rating is less than total and a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes 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, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following service-connected disabilities: traumatic brain injury, rated at 40 percent from August 27, 2015; residuals, post-operative right ankle with instability and osteoarthritis, rated at 20 percent; residuals, status-post fracture lumbar spine, L1, L2, and L3, with osteoarthritis L4-5 and L5-S1, rated at 10 percent prior to August 27, 2015, and at 20 percent from that date; arthritis, right knee with patellofemoral syndrome, rated at 10 percent; arthritis, left knee with patellofemoral syndrome, rated at 10 percent; hallux rigidus deformity, right first toe, with arthritic changes, rated at 10 percent; residuals, status-post fracture, right wrist, rated at 10 percent; residuals, status-post fracture, right thumb, to include arthritis, rated at 10 percent prior to November 5, 2015, and as noncompensable from that date; residuals, olecranon bursitis and tendonitis, right elbow, rated at 10 percent; residuals, osteoarthritis, cervical spine at C4-5 and C6-7, rated at 10 percent; residuals, post-operative left ankle arthritis, rated at 10 percent; tinnitus, rated at 10 percent; bilateral hearing loss, rated as noncompensable; hemorrhoids, rated as noncompensable; scar on right side of neck, rated as noncompensable; scar on right ankle, rated as noncompensable; and scar on left ankle, rated as noncompensable. The Veteran had a combined rating of 80 percent prior to August 27, 2015, and 90 percent from that date. The Veteran met the schedular percentage requirement throughout the relevant period because he had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more when his disabilities are combined as described under 38 C.F.R. § 4.16(a). Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran testified at the July 2021 Board hearing that he has difficulties with memory, judgment, and mood due to his service-connected TBI. He has difficulty walking, standing, and lifting due to his service-connected ankle, knee, and low back disabilities. He also must change position from time to time because his low back will start to tighten if he sits for too long. He estimates that he can stand and walk for 15 to 20 minutes at a time. Upon review of the record, the Board concludes that the Veteran has a narrow vocational profile due to his service-connected disabilities such that he was unable to secure or follow a substantially gainful occupation. Regarding the Veteran's physical limitations, the record shows that he has difficulty standing, walking, and sitting for extended periods, traversing uneven surfaces, lifting heavy items, bending, and performing other exertional activities that may be performed in a typical occupation due to his service-connected ankle, knee, and low back disabilities. Thus, from a physical standpoint, the Veteran's service-connected disabilities limit him to sedentary work, which for purposes of this decision the Board defines as work that requires no more than a total of 1 hour of standing and/or walking in an 8-hour workday and involves light lifting of no more than 10 pounds. He would also need to be able to change positions from standing to sitting frequently to relieve pain and tightness in his low back. With regard to the Veteran's limitations in mental functioning, the Veteran has reported difficulty paying attention and staying focused, difficulties with memory, and anxiety due to his service-connected traumatic brain injury. A November 2015 VA mental disorders examiner attributed the Veteran's memory and concentration problems to his service-connected traumatic brain injury. She also diagnosed the Veteran with a separate disability of unspecified disruptive, impulse-control and conduct disorder and attributed his symptoms of impulse control problems and irritability to that disability. A November 2015 VA traumatic brain injury examiner indicated that, due to his service-connected traumatic brain injury, the Veteran has mild impairment of memory, attention, concentration, or executive functions; mildly impaired judgment, such as occasionally being unable to consider alternatives and consequences to make reasonable decisions, making quick decisions, and having little patience; occasionally inappropriate social interactions; mildly impaired spatial orientation (for example, needing the use of GPS to navigate while driving); and neurobehavioral effects of being easily agitated and prone to violence. She stated that the examination report was completed in conjunction with the November 2015 VA mental disorders examiner, and concluded, "Given the veteran's pre-existing impulse control disorder and multiple head injuries it is impossible to further differentiate symptoms." In view of the VA traumatic brain injury examiner's statement, the Board finds that the Veteran's symptoms of memory and concentration problems, judgment problems, spatial disorientation, and irritability are attributable to his service-connected traumatic brain injury. Thus, from a mental standpoint, the Veteran's service-connected disabilities limit him to simple work that does not require interaction with others. In view of the foregoing, the Board concludes that, due to his service-connected limitations in physical and mental functioning, the Veteran is unable to complete more than sheltered work. Specifically, the record indicates that the Veteran's physical service-connected disabilities prevent him from performing more than a reduced range of sedentary work with the ability to change positions from sitting to standing at will. His service-connected traumatic brain injury further limits him to simple and repetitive work that does not require prolonged attention and concentration or interaction with others. Such limitations, especially his need to be able to change positions at will, would not generally be tolerated in the competitive workforce of sedentary occupations. As such, the Board concludes that the Veteran requires a sheltered environment within a narrow occupational range to accommodate his substantial service-connected limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16. The Board notes that the Veteran testified at the July 2021 Board hearing that he works as the mayor of a small town. He spends approximately one hour per week on duties related to that position, attends council meetings once per month as mayor, and is paid $100 per month for his services. In addition, the Veteran's VA Vocational Rehabilitation and Education folder shows that he was hired as a job site manager in July 2015 and earned $450 per month from that position through at least May 2017. Earnings of $550 per month is under the poverty threshold for an individual of the Veteran's age and household size. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed November 22, 2021). Therefore, his work as a mayor and as a job site manager is not considered substantially gainful. See Ray v. Wilkie, 31 Vet. App. at 73. In view of the foregoing, the Board concludes that the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board again notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). REASONS FOR REMAND 1. Entitlement to service connection for a disability of the jaw is remanded. The Veteran testified at the July 2021 Board hearing that he "got hit in the jaw a few times" while serving as a prison guard during his active service. He also testified that his jaw will now pop, click, and become sore. The Veteran's DD Form 214 supports his assertions of in-service jaw injuries, as it shows that he served as a correctional specialist and correctional counselor for over 19 years during his active service. In addition, the service treatment records show that a periodic dental examination conducted in September 2001 revealed the temporomandibular joint to have asymptomatic deviation to the right side. Given the foregoing, the Board finds that the threshold for providing a VA examination has been met, and that the issue must be remanded so that such an examination may be provided. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a left shoulder disability is remanded. The Veteran testified at the July 2021 Board hearing that he believes his current bilateral shoulder pain is due to in-service physical fitness tests, which he performed often during his 20 years of active service and involved doing pullups. Given the Veteran's testimony, the Board finds that the threshold for providing a VA examination has been met, and that the issues must be remanded so that such an examination may be provided. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 81. 4. Entitlement to a rating in excess of 10 percent for residuals, olecranon bursitis and tendonitis, right elbow is remanded. The most recent VA examination as to the Veteran's service-connected right elbow disability does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, the Veteran reported at that examination that his right elbow symptoms flare when he bumps the elbow against something and that the severity of the flare depends on how hard he hits his elbow. The examer indicated that an opinion as to functional loss during a flare-up in the right elbow symptoms cannot be provided without mere speculation because the Veteran was not being examined during a flare-up. The examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Therefore, the issue must be remanded so that the Veteran may be provided a new VA examination to determine the current severity of his service-connected right elbow disability, to include whether there is additional functional loss during flare-ups. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed disability of the jaw. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider the symptoms a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the disability of the jaw at least as likely as not (50 percent probability or greater) related to the Veteran's active service, including his in-service work as a corrections officer and the asymptomatic deviation of the temporomandibular joint to the right side shown in the service treatment records? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the current disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for his claimed bilateral shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider the symptoms a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the right and/or left shoulder disability at least as likely as not (50 percent probability or greater) related to the Veteran's active service, including his regular participation in physical fitness tests over the course of his more than 20 years of active service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the current disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals, olecranon bursitis and tendonitis, right elbow. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). To the extent possible, the examiner should provide an estimate of the degree of functional loss the Veteran had during flare-ups at the time of the March 2016 VA examination based on the Veteran's contemporaneous description of those flare-ups and any other relevant information. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.