Citation Nr: 21073850 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-21 166 DATE: December 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his service-connected disabilities have been sufficiently incapacitating as to functionally impair his ability to secure or follow any occupation beyond marginal employment in a protected environment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1995 to December 1997. This matter comes before the Board of Veterans Appeals' (Board) on appeal from an April 2013 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this issue in July 2018, June 2019, March 2020, February 2021, and August 2021. The RO has substantially complied with the remand instructions. As such, the Board will proceed with adjudication of this issue. In the August 2021 remand, the Board requested that the claim be forwarded to the Executive Director of Compensation Service to address extraschedular consideration. In October 2021, the Executive Director of Compensation Service opined against the Veteran's TDIU claim on an extraschedular basis. The Executive Director's decision is not evidence, but is rather akin to a de facto agency of original jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Executive Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Moreover, the Board finds that, as the Veteran met the criteria for a schedular TDIU since February 13, 2012, extraschedular consideration is not necessary in this case. A TDIU The Veteran contends that he has been unable to secure and maintain a substantially gainful occupation since February 13, 2012. See April 2021 Memorandum from Veteran's Attorney. With the resolution of reasonable doubt in his favor, the Board finds that he has been unable to secure and maintain substantially gainful employment outside of a protected work environment and is entitled to a TDIU based on his service-connected disabilities. 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. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). 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. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16 (a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; and disabilities affecting a single body system, such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Here, since February 13, 2012, the Veteran has a combined 70 percent rating for several service-connected disabilities, with the following allocated percentages: limitation of motion, left medial meniscal tear, medial femoral condyle lesion (20 percent); degenerative arthritis of the spine (claimed as lower back condition) associated with limitation of motion, left medial meniscal tear, medial femoral condyle lesion (20 percent); left knee instability (10 percent); atrial acetabular labral tear of left hip (10 percent); right knee strain (10 percent); left ankle condition (10 percent); tinnitus (10 percent); and right knee instability (10 percent). The Veteran's service-connected left and right knee, ankle, and back disabilities are all orthopedic disabilities; therefore, the Board will consider them as one disability for TDIU purposes. When their respective rating percentages are combined, they result in at least a 40 percent rating. In conjunction with the Veteran's other service-connected disabilities, he is in receipt of at least a 70 percent rating during the appellate period, thus satisfying the percentage requirement for schedular TDIU under § 4.16(a). The remaining consideration, then, is whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation during the appellate period. As an initial matter, the Board notes that the evidence in this case is extensive. The Board has reviewed all the evidence in the Veteran's claims folder, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. In this regard, the record contains two completed copies of the Veteran's Application For Increased Compensation Based On Unemployability Form (VA Form 21-8940), obtained in September 2012 and March 2021. On his VA Form 21-8940 received in September 2012, he indicated that he last worked full-time as a service manager at H.T. Roofing, from 2009 to April 2010, where his highest gross earnings were $8,400.00 per month. He indicated that he lost over 160+ hours of work due to illness. See September 2012 VA Form 21-8940. Prior to that, he worked over 40+ hours per week as a service technician at 1) L.P. Group, from 2008 to 2009, for $4,700.00 per month, and lost over 24 hours to illness; 2) Q.C in 2008, for $4,500.00 per month, and lost over 80 hours to illness; 3) I.R. Inc. from 1999 to 2007, for $6,600.00 per month, and lost over 200 hours to illness. Id. He indicated that he did not earn any income in the prior 12 months. Id. He further indicated that he left his employment at H.T. Roofing due to his disabilities. Id. The Veteran completed four years of high school and two years of college. Id. He explained that he also completed various courses on light and heavy industrial air compressors for commercial applications. Id. On a Request For Employment Information Form, obtained in September 2012, one of the Veteran's former employers, H.T. Roofing, indicated that the Veteran was employed in construction management from February 2009 to April 2010, working approximately nine hours per day and 54 hours per week, and earning a total of $37,158.00 during the 12 months preceding the last date of employment with the company. The Veteran lost more than 160 hours of work during the last 12 months with the company, due to his disabilities. The employer made concessions to the Veteran by reason of the Veteran's disabilities, to include restricted climbing and restricted lifting. The employer noted that the Veteran was terminated because he was unable to perform the duties of the position in a proficient and timely manner, and due to time lost due to his disabilities. The Veteran's March 2021 application for a TDIU reveals that he currently works 40 hours per week in facilities maintenance with the Department of Veterans Affairs National Cemetery Administration (VANCA), a position he has held since March 2018, and for which he makes gross earnings of $3,690.00 per month. He indicated that he loses approximately six days of work each month due to illness. See VA Form 21-8940, March 2021. He listed his total income for the prior 12 months as $43,603.00. Id. Prior to his job at VANCA, the Veteran worked for 50+ hours per week as a project superintendent at R.M. Inc., from January 2016 to February 2018, earning $8,000.00 per month. Id. He indicated that he lost approximately four to five days of work each month due to illness. Id. The Veteran noted that the most he earned in one year was $104,000 in 2017, while working as a project superintendent. Id. He remarked that his current employer, VANCA, makes reasonable accommodations for him, by allowing him to sit, stand, move, and take breaks when needed. Id. He is also permitted to take time off without pay when he exhausts his sick, annual, and donated leave, to attend doctors' appointments or when needed, if his body is not cooperating with his willingness to work. Id. He further noted that he is sometimes assigned a helper to accomplish tasks and/or given additional time to accomplish those tasks. Id. In October 2021, after reviewing the evidence, the Executive Director of Compensation Service denied a TDIU, albeit on an extraschedular basis. Notably, the Director opined that the overall evidence fails to support the contention that any of the Veteran's service-connected disabilities, or a combination of the effects of those disabilities, presented such an exceptional situation as to prevent gainful employment. However, as previously explained, the Executive Director of Compensation Service's negative opinion is not binding on the Board because it is a decision of fact. Thus, the Board acknowledges this adverse decision, but notes that it will be reviewed in light of the total evidence of record, as opposed to using it as a sole determining factor in making a final decision on the Veteran's claim. The regulatory phrase "substantially gainful occupation" refers to employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, "substantially gainful occupation" within the regulatory meaning specifically excludes marginal employment that produces income under poverty thresholds. 38 C.F.R. § 4.16 (a). Importantly, regardless of the Veteran's income level, marginal employment may exist in the factual circumstances, where the Veteran performs most or all the work in a so-called protected environment such as a family business or sheltered workshop. Id. Here, the Veteran and his attorney have indicated that the Veteran has been working in what is equivalent to a protected work environment as the Veteran is afforded several accommodations by his workplace, including being allowed to miss numerous days of work due to the Veteran's physical limitations and pain; not being pushed to meet deadlines; the assignment of a "helper" for strenuous tasks; and being allowed to rest and take many breaks. See, for e.g., Attorney's April 2021 Memorandum. Medical records dated in January 2013 note that the Veteran was evaluated for low back and left lower extremity pain. It was noted that he had decreased range of motion, experienced both tenderness and pain upon palpation, and was unable to perform all the testing due to hip pain. The examiner noted that the Veteran was unable to work due to the combination of his pain and side effects of his medications. Treatment records dated in February 2013 and January 2014 note the Veteran experienced pain that was increased by exercise, movement, touching, standing, and walking. It was documented that the pain the Veteran experienced affected his sleep, appetite, physical activity, walking, relationships, concentration, and work productivity. At a March 2015 VA examination for the Veteran's knees and lower legs, it was noted that the Veteran relied on the regular use of a cane. The Veteran reported daily pain and swelling. The examiner opined that the Veteran's left knee condition impacted the Veteran's ability to perform any type of occupational tasks, including standing, walking, lifting, and sitting. At November 2018 VA examinations for knees, lower legs, hips, and thigh conditions, the Veteran reported that his "limitations are walking more than 100 feet, standing in one position more than one or two minutes, sitting in one position more than five minutes, lifting more than 15 to 20 pounds, and trying to get in and out of the car." He further stated that he could not squat or run and that the left knee would lock if he bends it more than 90 degrees. The examiner opined that the Veteran's knee and thigh conditions did impact the Veteran's ability to perform occupational tasks such as standing, walking, lifting, and sitting. At a September 2019 VA examination for back conditions, the examiner noted that the Veteran had moderate pain upon palpation of bilateral lumbar paraspinals, which was consistent with degenerative disc disease. He opined that the Veteran's back condition impacted the Veteran's ability to work. It was noted that the Veteran occasionally missed work due to flares. In a vocational assessment report, submitted in February 2021, a vocational consultant opined that the Veteran's symptoms from his back, knee, hip, and ankle disabilities would preclude him from being able to perform the essential work functions of his past work or any competitive job in the national economy. She noted that the Veteran's work over the past few years, especially in his current role at VANC, has been highly accommodated and is equivalent to a protected work environment because it would not be considered a typical work environment for many reasons. She explained that, in all the Veteran's past work history, he has been highly accommodated with excessive absences, taking breaks at-will, and had his inability to complete essential duties of the position overlooked. She further explained that, at all the Veteran's past jobs, he had to enlist the help of co-workers to complete his job duties, he missed required deadlines, he worked at a substantially slower pace, and he made costly mistakes that resulted in compromising the safety and reliability of himself and those around him. The consultant noted that the Veteran's excessive absences and numerous mistakes indicate that the Veteran was highly protected and accommodated because "no employer would accept these continuous mistakes, lack of productivity, excessive absences, and significant focus difficulties as it would result in the most unreliable and unproductive employee, like the Veteran has demonstrated in most of his work history." She reiterated that, from a vocational perspective, it is obvious that all the Veteran's limitations and behaviors were overlooked and allowed and that these "accommodations" or allowances would never be accepted in a typical work environment as it would lead to an irresponsible and unreliable employee, as the Veteran has demonstrated he is, further proving that much of his employment from at least 2012 to the present time would be considered sheltered and highly accommodated. The consultant stated that, based on a review of the records, the Veteran is incapable of sustaining gainful and competitive employment since at least February 13, 2012, to include sedentary positions. She noted that he was unable to complete his job duties on a reliable and consistent basis and that all physician evaluations document that his service-connected orthopedic disabilities began significantly worsening with no expected improvement, thereby impacting his work and daily life. She explained that due to the Veteran's back, knee, hip, and ankle disabilities, and accompanying inability to maintain any prolonged position or ambulate without pain or an increase in symptoms, the Veteran would not be considered a reliable employee in any work situation, regardless of the nature of the sedentary position. She further explained that the Veteran's service-connected disabilities and associated symptoms have significant vocational limitations, including the Veteran's inability to "keep the pace;" persist through tasks without needing numerous breaks; handle even low levels of stress; be reliable in a consistent manner; and to clearly focus on all tasks. The consultant noted that, since at least February 13, 2012, all of these impairments made the Veteran unreliable and unproductive, and as his symptoms have not improved and have been opined by all physicians to result in a definite occupational impairment with reduced reliability and productivity and significantly impact his ability to perform occupational tasks of sitting, standing, and walking, will continue to preclude him from performing all substantial and gainful work activity, including sedentary work. The vocational consultant concluded that the Veteran's orthopedic disabilities preclude him from sleeping well throughout the night, resulting in daily fatigue; concentrating and staying on task, due to focus on physical pain and as side effect from pain medication; dressing himself and getting in and out of the car with ease or without resistance; sitting, standing, or walking for prolonged periods due to persistent back, hip, and knee pain; and ambulating without use of braces and assistive device. She indicated that she interviewed the Veteran and reviewed his VA claims file. The Board has carefully considered statements from examiners, the Veteran, the Veteran's attorney, and the vocational consultant regarding the effects of the Veteran's service-connected disabilities on his employability and finds that the positive and negative evidence regarding his TDIU claim is in relative equipoise. The ultimate TDIU decision is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, with the resolution of reasonable doubt in the Veteran's favor, the Board finds that his service-connected orthopedic disabilities prevent him from securing or following a substantially gainful occupation outside of a protected work environment, given his work history, his education, and the resulting symptoms of his disabilities. The evidence in its entirety shows that the Veteran's disabilities functionally limit him, resulting in numerous absences and decreased productivity, and causing his employer to provide many accommodations for him at work. The Board finds that this is tantamount to working in a protected work environment. Notably, the Board affords great probative weight to the February 2021 vocational expert's opinion which indicated that while the Veteran is employed, he is only able to maintain such employment because it is a protected work environment, since no typical employer would accommodate the Veteran's excessive absences, numerous breaks, and his inability to complete essential duties of his job. In addition, the Board finds no reason to question the credibility of the Veteran's assertions that his employer makes reasonable accommodations for him, by allowing him to sit, stand, move, and take breaks when needed; to take time off without pay when he exhausts his sick, annual, and donated leave; and by assigning him a helper to accomplish tasks and/or given additional time to accomplish those tasks due to his disabilities. Furthermore, the VA examiners, throughout the appellate period, regularly noted that the Veteran's service-connected disabilities would negatively impact the Veteran's ability to perform occupational tasks such as standing, walking, lifting, and sitting, while the vocational expert concluded that the Veteran's limitations would also negatively impact his ability to perform sedentary work. As such, the Board resolves all reasonable doubt in favor of the Veteran to conclude that his service-connected disabilities render him unable to maintain a substantially gainful occupation, in light of his educational and work background. In sum, the evidence of record shows that the Veteran's service-connected knee, back, hip, and ankle disabilities functionally limit him to marginal employment in a protected environment, which effectively precludes him from securing and following a substantially gainful occupation. The claim for a TDIU is warranted, and the claim is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.