Citation Nr: 21073882 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-40 096A DATE: December 13, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) from March 3, 2015, but no earlier, is granted. FINDING OF FACT From March 3, 2015, the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW From March 3, 2015, 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, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1979 to March 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). An April 2020 Board decision awarded entitlement to a TDIU as of November 27, 2017 and denied entitlement prior to that date. In response to the Board decision denying the claim, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, which directed a remand of the portion of the decision addressing the claim for entitlement to TDIU prior to November 27, 2017. See April 2021 JMPR. Entitlement to a total disability rating based upon individual unemployability (TDIU) from March 3, 2015 is granted. Upon review of the evidence, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from March 3, 2015. 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 the disability ratings assigned for his or her service-connected disabilities met certain thresholds. 38 C.F.R. § 4.16(a). As of October 25, 2013, the Veteran was in receipt of service connection for a left knee disability, evaluated as 10 percent disabling prior to November 27, 2017. As of February 28, 2014, the Veteran was in receipt of service connection for a right knee disability, evaluated separately as a right knee strain with subluxation as 10 percent disabling, and chronic subluxing right patella as 20 percent disabling, with a temporary total rating following surgery from June to October 2016; a thoracolumbar strain evaluated as 10 percent disabling, later raised to 20 percent; and left and right hip strains, each evaluated as 10 percent disabling. Finally, as of October 24, 2014, the Veteran was granted service connection for an adjustment disorder with mixed anxiety and a depressed mood, evaluated as 30 percent disabling; and tinnitus, evaluated as 10 percent disabling. Applying the combined ratings table, the Veteran had a combined rating of 70 percent as of October 24, 2014, with compensable ratings due to a common etiology equaling 40 percent. Consequently, the Veteran meets the schedular criteria for a TDIU since October 24, 2014. See 38 C.F.R. § 4.16(a). The Board turns to the second aspect of TDIU: whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). Analysis Pertinent to the Veteran's educational history, he obtained a GED and has a two-year college degree in law enforcement, and certification in emergency medical technician (EMT) training and he has a paramedic qualification. Turning to his work history, he worked as a truck driver, as a farmhand, in maintenance, then for ambulance companies. Specifically, he worked for Miller Ambulance Service in Illinois as an EMT and later as a paramedic from 1985 to 1999, he then worked for ASAP Ambulance in Indiana for ten months and lost his job when the ambulance service was closing, and then went to Sling County Ambulance in Illinois for thirteen years until he was let go due to the ambulance service losing the county contract. He then worked for Medforce Ambulance in Illinois for five months, until his license was suspended for eight months. He then worked for White County Ambulance for six months until his knee dislocated when he was getting in the ambulance. See August 2017 Application for Increased Compensation Based on Unemployability; see also March 2015 VA Psychiatric Examination. The Veteran has not worked since such time. The JMPR noted that, in its decision, the Board failed to adequately address whether the duty to assist to obtain private records was triggered, failed to address favorable evidence, and failed to address whether the Veteran had the mental and physical ability to secure and follow substantially gainful employment. Specifically, the JMR determined that private treatment records from Dr. Oldham were identified in the record but were not obtained. On remand, the Veteran was asked to provide an appropriate authorization form to obtain records from this provider and VA should take appropriate steps to obtain them. 38 U.S.C. § 5103A(b)(1). The Veteran did not respond to two requests from VA to obtain Dr. Oldham's records and no further duty to assist remains with respect to this evidence. See September 2021 Correspondence. The remaining errors identified in the JMPR will be addressed below. With respect to the Board's April 2020 denial of TDIU from March 3, 2015, the JMPR identified records that were pertinent to the claim that were not discussed by the Board. Specifically, SSA records from an August 17, 2015 functional assessment show examination finding that Veteran can walk 100 feet, stand for 20 minutes, and sit for one hour. See April 2021 JMPR. The parties also noted VA medical records from February 16, 2017 showing bilateral knee pain with sitting, which conflicted with a Board finding that there was no impact from left knee on sedentary employment until September 2019. The JMPR also found that service-connected psychiatric impairments pertinent to the claim that were not discussed by the Board. Specifically, an August 17, 2015 SSA psychiatric assessment showed anxiety, depression, and suicidal ideation and July 25, 2015 SSA records show adjustment disorder with symptoms interfering with difficulty completing tasks and trouble finishing what he starts. Further, March 16, 2016 medical records show the Veteran was easily angered, agitated, and had a history of depression with suicidal ideation. The parties also found the Board erred in analyzing whether Veteran is mentally and physically capable of substantially gainful activity (SGA). The parties agreed it was error when the Board determined whether Veteran would be able to find work rather than whether he is physically and mentally capable of SGA. Here, the record reflects the Board determined in the April 2020 decision that the Veteran would be unable to secure and follow employment that requires physical labor since February 28, 2014. This decision incorporates the medical evidence summarized in the April 2020 determination, with the exceptions as identified in the JMPR listed above. In this respect, the Board finds Veteran's ability to perform sedentary employment would be further reduced by his service-connected lumbar, knee, and adjustment disorder disabilities. In this regard, the Veteran underwent a March 2015 VA psychiatric examination, at which time he was diagnosed with an adjustment disorder with mixed anxiety and a depressed mood. See March 2015 Examination. The Veteran noted he has had difficulties at work. The examiner endorsed the Veteran with occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, with anger and resentment problems, and symptoms of a depressed mood, anxiety, and difficulty establishing and maintaining relationships. The Veteran also reported limitations from bilateral knee pain and lumbar spine pain at the March 2015 examination, noting right knee pain limited his mobility and would ultimately cause instances of increased lumbar spine pain that would reduce is functional ability. See March 2015 Examination. Further, the Veteran has been receiving SSA disability benefits since March 3, 2015. While the SSA decision is probative evidence in regard to his TDIU, it is not dispositive or binding on VA since the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). In this instant case, the Board notes that such award was based on numerous disorders, including those service-connected and not. Importantly, the SSA records indicate the Veteran's service-connected lumbar spine disability was manifested by rotoscoliosis with an exaggerated lower thoracic kyphosis that affected the ability to put on shoes and socks. The Veteran reported lumbar spine, bilateral hip, and bilateral knee pain affected his ability to perform seated work. See August 2015 Examination. The examiner noted that low back pain, hip pain, and knee pain, resulted in ability to stand for 20 minutes and sit for one hour, with no squatting or bending. The determination by SSA, which the Board finds probative and persuasive, indicates the Veteran's residual functional capacity is sedentary. The evidence listed in the JMPR indicates his disability picture was consistent with an individual incapable of his past relevant work as a paramedic. As noted above, the Veteran meets the schedular criteria for a TDIU since October 24, 2014. See 38 C.F.R. § 4.16(a). Prior to such date he does not meet the schedular criteria for a TDIU, and the Board further finds that referral for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) is not warranted. Importantly, the Veteran was engaged in substantially gainful activity (SGA) as an emergency medical technician from October 1999 to June 2013 with one employer and July 2014 to March 2015 with a different employer, working 40 plus hours per week. See August 2017 VA Form 21-8940. Although the Veteran's date of claim for TDIU is October 22, 2014, and he meets the criteria for TDIU from October 24, 2014, he was engaged in SGA until approximately March 2015. The Veteran does not contend he was unemployable due to service-connected disabilities prior to March 2015. Given the Veteran's SGA prior to March 2015, the Board finds referral for extra-schedular TDIU is not warranted prior to March 3, 2015. Further, the Veteran was not unemployable due to service-connected disabilities prior to March 3, 2015 because he was engaged in SGA and reports he was employed full-time until a career-ending knee injury. Here, the Board is determining (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility the Veteran was unemployable because of service-connected disabilities prior to March 3, 2015; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable prior to March 3, 2015. Snider v. McDonough, No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050, at 19-20 (Vet. App. Nov. 19, 2021). Based on the foregoing, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment as of March 3, 2015, the date he was determined disabled by SSA. In this regard, as described above, the Veteran's occupational impairments were orthopedic and psychological and affected his sedentary employment during such period. Notably, his mental faculties were affected by his service-connected disabilities at that time. In this regard, the Board notes the Veteran's education and work background were in emergency medicine and this occupation is both physically and psychologically demanding. Further, given his limited post-secondary education and worsening psychiatric disability picture, the Board finds it unlikely the Veteran would be able to obtain and maintain substantially gainful activity from the period of March 3, 2015 to November 27, 2017. The Board notes this finding is consistent with the Veteran's contentions that he has not worked since he dislocated his right knee entering an ambulance and has not worked since that injury. Thus, based on the foregoing and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities prevented him from securing or following a substantially gainful employment since March 3, 2015. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Therefore, entitlement to a TDIU as of such date is warranted. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.