Citation Nr: 21074013 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 08-11 118 DATE: December 14, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from October 31, 2008 is granted. A TDIU due to service-connected disabilities prior to October 31, 2008 is denied. Entitlement to an initial rating in excess of 10 percent for chondromalacia patella of the left knee with degenerative changes is dismissed. FINDINGS OF FACT 1. Since October 31, 2008, the Veteran's service-connected disabilities have precluded him from securing and following a substantially gainful occupation consistent with his education and occupational background. 2. Prior to October 31, 2008, the Veteran was gainfully employed. 3. In November 2021, prior to the promulgation of a decision in this appeal, the Veteran requested a withdrawal of the remaining issues on appeal if the Board granted his claim for a TDIU from October 31, 2008. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU are met from October 31, 2008. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 2. The criteria for entitlement to a TDIU are not met prior to October 31, 2008. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 3. The criteria for dismissal of the claim of entitlement to an initial rating in excess of 10 percent for chondromalacia patella of the left knee with degenerative changes are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1963 to June 1966 and from February 1974 to November 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for chondromalacia patella, left knee and assigned a 10 percent disability rating effective June 21, 2006. The Veteran's notice of disagreement (NOD) was received in April 2007. The RO issued the statement of the case (SOC) in February 2008, and the Veteran's VA Form 9, substantive appeal was received in March 2008. In March 2012, December 2013, March 2016, February 2018 the Board remanded the case to the RO for further development and adjudicative action. In October 2019, the Board denied an initial rating in excess of 10 percent for chondromalacia patella of the left knee with degenerative changes, granted service connection for a right knee disability and remanded the issue of entitlement to TDIU. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a September 2020 Order, the Court vacated the Board's October 2019 decision with respect to the issue of entitlement to an initial rating in excess of 10 percent for chondromalacia patella of the left knee with degenerative changes and remanded the matter pursuant to a September 2020 Joint Motion for Partial Remand (JMPR). In April 2012, the Veteran reported that he had been unemployed since October 2008 and stopped working due to his service-connected left knee disability. Therefore, a claim for a TDIU has been raised in connection with the instant appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to TDIU from October 31, 2008. 2. Entitlement to TDIU prior to October 31, 2008. The Veteran asserts that his service-connected disabilities have prevented him from securing or following any substantially gainful employment since October 31, 2008, the date following his last day of full-time employment. See e.g., November 2021 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is rated at 40 percent or more and the combined disability rating is at least 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric; multiple injuries incurred in action; or, multiple disabilities incurred as a prisoner of war. Id. For the purposes of § 4.16(a), marginal employment shall not be considered substantially gainful employment. 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. 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. The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to the veteran's age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose, supra. Whether a TDIU is warranted is a legal and not a medical determination and must take into account all of the medical and lay evidence. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner;" "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The Veteran's service-connected disabilities include lichen simplex chronicus and tinea corporis affecting the neck, arms and posterior chest (skin disability), rated as 60 percent disabling effective from April 12, 2007; lower back injury (back disability) rated as 10 percent disabling from June 21, 2006 and 40 percent disabling from August 2, 2017; chondromalacia patella left knee with degenerative changes (left knee disability) rated as 10 percent disabling from June 21, 2006; chondromalacia patella right knee with degenerative joint disease (right knee disability) rated as 10 percent disabling from September 6, 2011; tinnitus rated as 10 percent disabling from August 2, 2017; and bilateral hearing loss rated as noncompensable from August 2, 2017. The Veteran's combined disability rating is 20 percent from June 21, 2006, 70 percent from April 12, 2007, and 80 percent from August 2017. As the Veteran has a single disability rated at 60 percent (or in the alternative he has a combined rating in excess of 70 percent with at least one disability rated at least 40 percent) the minimum percentage threshold requirements for consideration of a schedular TDIU are met from April 12, 2007. 38 C.F.R. § 4.16 (a). In this case, the collective evidence shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation since October 31, 2008, the date following his last day of full-time, gainful employment. On his November 2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported his highest level of education completed was two years of college. He reported that his service-connected left knee, lower back and skin disabilities prevent him from securing or following a substantially gainful occupation. The Veteran reported working full time as a security guard from November 2004 to October 30, 2008. He reported that he previously worked in maintenance for an apartment complex from November 1999 to March 2006. He reported that he last worked full time on October 30, 2008. The Veteran also reported that his disability affected his full-time employment and he became too disabled to work on October 30, 2008. In a lay statement accompanying his application, the Veteran stated that his knee pain gets worse whenever he walks or stands which makes it very difficult to walk. He added that he has to constantly use braces and a cane because of the pain and that his knee sometimes locks up or gives out. He also stated that he experiences pain whenever he sits for an extended time. The Veteran reported constant back pain which affects his ability to concentrate and complete tasks and stated that he is unable to bend over or kneel down. He stated that he has had to use strong pain medications for years but that these medications no longer provide relief. He also reported needing to use ointments and medications multiple times a day to treat his skin disability which he stated worsens during hot weather and sometimes affects his sleep. Regarding functional impairment due to the service-connected skin disability, the medical and lay evidence of record indicates that the Veteran's skin disability manifests in multiple areas of excoriation, postinflammatory hyper- and hypopigmentation, superficial fissures with scant bleeding to both lower extremities, lichenification of the trunk and upper and lower extremities, very dry skin and severe itching and affects 20 percent of the exposed area and between 30 percent and 80 percent of the entire body surface area. A June 2008 VA treatment note indicates that the Veteran's skin disability required multiple applications of ointment per day and UVB treatment 3 times per week. VA treatment records indicate that the Veteran was hospitalized in August 2008 for his skin disability. An August 2017 VA examination report indicates that the Veteran was capable of any type of physical activity as a result of his service-connected skin disability alone. Regarding functional impairment due to the service-connected left knee and back disabilities, the medical and lay evidence of record indicates that the Veteran's left knee and back disabilities manifest in constant dull pain and intermittent sharp pain in the left knee and back, decreased sensation and reflexes in the bilateral lower extremities, unsteady gait, occasional falls due to left knee instability, an inability to bend over or kneel, daily flare-ups precipitated by walking and standing, constant use of a knee brace and cane, and difficulty squatting and climbing ladders and stairs. While treatment records indicate some brief periods of improvement in left knee symptoms, follow-up treatment records consistently reflect that such improvement was transient and recommend that the Veteran undergo a total left knee replacement. An April 2012 VA examination report indicates that the Veteran's bilateral knee disabilities impacted his ability to work due to the fact that squatting and kneeling tasks are difficult and sitting more than 30 minutes to do any task is difficult. An August 2017 VA examination report indicated that the Veteran was capable of only sedentary or very light duty work due to his service-connected low back disability alone. The VA examiner similarly stated that the Veteran was capable of only sedentary to light duty work due to his service-connected left knee disability alone. The Veteran submitted an October 2021 private vocational assessment. The private vocational specialist, L.M., reviewed the claims file, interviewed the Veteran and examined the Department of Labor descriptions for the Veteran's work history. L.M. recounted the Veteran's work and medical history and noted medical providers' descriptions of his functional impairment due to his left knee, lower back and skin disabilities. L.M. stated that the Veteran is unable to perform the full range of physical requirements of work at the sedentary physical demand level on a consistent and reliable basis due to his service-connected left knee, lower back and skin disabilities. L.M. stated that another barrier to sedentary work for the Veteran is his lack of education and transferable skills. L.M. noted that the Veteran has an education in plumbing and electrician work which are defined as medium and heavy strength jobs. L.M. concluded that his lack of experience in sedentary work and lack of transferable skills put him at a significant disadvantage in a competitive labor market. L.M. concluded that the Veteran has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since October 2008 due to his service-connected left knee, lower back, and skin disabilities. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person's ordinary activity (see 38 C.F.R. § 4.10), and such has been done here. The findings, comments and opinions of the VA examiners and private and VA physicians have appropriately been considered as pertinent evidence, along with the Veteran's competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. In light of the foregoing, the Veteran is found to be unable to maintain employment due to his service-connected disabilities. The available evidence indicates that the functional impairment associated with the Veteran's service-connected disabilities, particularly his left knee, skin and low back disabilities, would preclude the Veteran from returning to his prior work as maintenance supervisor, plumber, electrician and security officer. Moreover, given his lack of any significant experience outside of those occupations, as well as his limited education, it is unlikely that he would be able to obtain gainful employment in a different profession that would not similarly be precluded by the symptoms of his service-connected disabilities. Taken together, the symptoms associated with all of the Veteran's service-connected disabilities would make it extremely difficult for him to maintain substantially gainful employment. The Veteran's service-connected disabilities would likely allow only marginal employment at best, given the excessive restrictions they would put on finding adequate employment. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded by his service-connected disabilities from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience from October 31, 2008. Resolving any reasonable doubt in favor of the Veteran, entitlement to a TDIU is warranted from October 31, 2008. Prior to October 31, 2008, the Veteran was gainfully employed. 3. Entitlement to an initial rating in excess of 10 percent for chondromalacia patella of the left knee with degenerative changes. (Continued on the next page) In a November 2021 Appellate Brief, the Veteran's representative stated that, if the Board granted the Veteran's pending claim for TDIU effective from October 31, 2008, the Veteran wanted to withdraw the issue of entitlement to a higher rating for his service-connected left knee disability. As the Board has granted the Veteran's claim for TDIU, there remain no allegations of errors of fact or law for appellate consideration. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Accordingly, the Board does not have jurisdiction to review the remaining issue on appeal, and it is dismissed. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.