Citation Nr: 21074014 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 13-09 362 DATE: December 14, 2021 ORDER From October 30, 2009, entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT From October 30, 2009, the Veteran has been incapable of obtaining and maintaining substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW From October 30, 2009, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from December 1988 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in April 2010. This issue was before the Board in June 2014, February 2017, January 2020, and April 2021, at which time, the issue was remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action. Entitlement to a TDIU Resolving all reasonable doubt in favor of the Veteran, his service-connected disabilities have precluded him from engaging in substantially gainful employment from October 30, 2009. The Veteran's claim of an increased rating for his service connected right leg disabilities was initially filed on October 30, 2009; and a formal claim for a TDIU was initially received on February 3, 2010. The Veteran contends that he was unable to secure or follow a substantially gainful occupation due to his service connected right leg, back and nerve disabilities and his non-service connected hip disability. He indicated that he last worked full-time on October 30, 2009. But see November 2009 SSA Statement and September 2010 SSA Decision (October 16, 2009). A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The United States Court of Appeals for Veterans Claims (Court) has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the 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. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of a service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). The inability to secure or follow a substantially gainful occupation does not require that the Veteran be totally disabled before finding that there is an inability to engage in substantial gainful activity; rather, the issue is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991); see also Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). As a preliminary matter, for TDIU consideration, the veteran must meet the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a), (b). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16(a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. For the purposes of determining whether the schedular criteria for a TDIU have been met, disabilities of common etiology will be considered a single disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). At the outset, the Board finds that all of the Veteran's service-connected disabilities are considered a single disability as they share a common etiology, residuals from a motorcycle accident in service. See November 1992, April 2010, July 2020 rating decisions. The Board in its January 2020 decision granting service connection for a low back disability recognized that the Veteran's back disorder was likely the result of several in-service incidents including an October 1991 motor vehicle accident in which the Veteran sustained his other service-connected disabilities. The Board finds that from October 30, 2009, the Veteran has met the schedular criteria under 38 C.F.R. § 4.16(a), based upon a single disability with a rating of 60 percent for his service connected disabilities (20 percent ratings for history of a right leg disability characterized as distal tibia and fibula fracture, a right leg bone graft characterized as a right iliac crest bone graft, and a lumbar spine disability characterized as lumbar spondylosis; and 10 percent ratings for a right leg nerve disability characterized as internal saphenous nerve insult and right leg scar characterized as tender right lower medial surgical scar). The Board notes that initially, it was determined that the Veteran did not meet the schedular criteria under 38 C.F.R. § 4.16(a). In April 2021, the Board determined that the Veteran had a combined disability rating of 60 percent during the period on appeal. However, as discussed, as all of the Veteran's service-connected disabilities share a common etiology, the Board finds that the combined 60 percent rating was more appropriately characterized as a single disability with a 60 percent rating for the purposes of determining whether the schedular criteria for a TDIU had been met. The Board has considered and relied on lay testimony and statements of record regarding the Veteran's service-connected disabilities impact on the Veteran's ability to secure and follow "substantially gainful employment" under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board notes that the Veteran filed for Social Security Administration (SSA) disability benefits in November 2009. SSA determined that the Veteran had been disabled since October 2009. SSA determinations are not binding on the Board, and it is the duty of the Board to assess the credibility and weight to be given such evidence. Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU). The Board notes that the evidence of record indicates that the Veteran's highest level of education was receiving a General Educational Development (GED) certification, which he obtained in 1987. See also July 1992 Education Records; February 2010 Veterans Application for Increased Compensation Based on Unemployability (Formal TDIU Claim); November 2009 SSA Statement; December 2015 VA Examination. The Veteran has not completed any additional job training or attended any trade or vocational school; and he has not participated in any program, which provided vocational rehabilitation, employment service, or any other support services to help him get to work. See November 2009 SSA Statement. The evidence of record indicates that the Veteran's work experience included working as a cook from December 1988 to September 1992 in the Army; as a machinist from 1995 to November 2006 for two different employers and working as a security guard for one employer from April 2007 to October 2009. See November 2009 SSA Statement; February 2010 Form TDIU Claim; December 2015 VA Examination. In February 2010, he indicated that the most that he had ever earned in one year was $45,000 from 1994 to 2004 as a machinist. He also indicated that he last worked in security working 40 hours per week until October 30, 2009 and his highest gross earning per month was $22,000. But see May 2010 Income-Net Worth and Employment Statement. The Veteran reported that he had been medically discharged from the military due to his right leg injury in service; and reported that it took a year and a half for him to learn to walk after his accident. See December 2015 VA examination. The December 2015 VA examiner noted that a review of the Veteran's DD-214 indicated that the Veteran had been discharged from service in September 1992 due to a temporary disability. The Veteran has reported that his duties as a machinist, included using machines, tools, or equipment, and technical knowledge or skills. See November 2009 SSA Statement. The Veteran reported that his duties as a machinist required him to walk and stand 10 hours a day, stoop and crouch an hour a day, reach for 5 hours a day; and lift objects all day, which weighed up to 80 pounds, and weighed on average 20 pounds. The Veteran also reported supervising approximately 3 to 4 people, 20 minutes per day. The Veteran did not work as a lead worker, and he did not hire or fire employees. The Veteran also did not complete any duties like writing or completing reports. In March 2010, a previous employer noted that the Veteran had been a machine operator from April 2007 to September 2007 and earned $21,895. The employer noted that the Veteran was not given any concession due to his age or disability; and noted that the Veteran had taken time off from work, and never returned. The Veteran indicated that his duties as a security guard required walking or standing. See November 2009 SSA Statement. The Veteran reported that he stopped working in October 2009 because he could no longer do his job which required him to walk. See November 2009 SSA Statement. The Veteran reported that service-connected right leg disabilities and his lumbar spine disability impacted his ability to work. He reported that as a result of his service-connected disabilities, he had limited mobility, was unable to walk more than 5 to 10 feet without experiencing severe pain, to lift anything, and he could not stand or sit for an extended period of time due to his service-connected back and right leg disabilities; and his non-service connected hip disability. December 2009 VA examinations indicate that the Veteran reported that he had pain in his back and legs; he reported that he walked with a cane and used a lift in his shoe; and he reported that he could not stand for more than 15 minutes, could only walk 50 yards with a break, and could not climb stairs. See also January 2010 Statement; December 2009 and March 2010 VA Treatment Records; December 2015 VA Examination; but see February 2016 VA Examination. Medical opinions in evidence reflect that the Veteran's service-connected disabilities render him unable to work. The medical evidence of record reflects that due to the Veteran's service-connected right leg and lumbar spine disabilities the Veteran could not lift more than 20 pounds occasionally; carry more than 5 pounds occasionally, lift and/or carry more than 10 pounds frequently; sit for more than a total of about 6 hours in an 8-hour workday. See December 2009 SSA Physical Residual Functional Capacity Assessment (SSA Assessment); December 2009 private treatment record; see also December 2009 VA treatment record. In addition, the Veteran was unable to climb, kneel, squat, crawl, or balance for any length of time; and stand or walk more than 2 hours per day for more than 30 minutes continuously. Finally, the Veteran was not able to perform any lower extremity machinery operation; or perform work above ground level. See December 2009 private treatment record; see also December 2009 SSA Assessment. The Veteran could never use ramps, stairs, or climb ladders, ropes, or scaffolds; and had to avoid concentrated exposure of vibration, and avoid hazards (machinery, heights, etc.). See December 2009 SSA Assessment; see also December 2009 private treatment record. In December 2009, a SSA disability examiner noted that based upon the December 2009 Assessment, the Veteran had a residual functional capacity (RFC) between sedentary and light, noting that the Veteran's RFC was closer to sedentary due to standing or walking limitations; and non-exertional limitations did not further erode his capacity to perform a wide range of sedentary work activities. The SSA disability examiner opined that the Veteran was unable to return to past relevant work (PRW), as a machinist or security guard, as described or generally performed. The SSA disability examiner opined that the Veteran's vocational profile was consistent with the ability to adjust to other sedentary work and noted that number of jobs in this range would not have been significantly reduced by the Veteran's non-exertional restrictions; and noted that the jobs that the Veteran could do included, surveillance system monitoring (government service), call-out operator (retail trade); and weight tester (paper and pulp) (recycling). The SSA disability examiner did not discuss the necessary skills and experience necessary for each occupation in relation to the Veteran's education and prior work experience. In September 2010, a SSA Administrative Law Judge (ALJ) found, given the severity of the Veteran's impairments and in light of the restrictions recommended by all sources, that the Veteran could perform no work-related activities on a regular and continuing basis. The ALJ noted that the State agency medical consultant's physical assessment was given little weight because evidence received at the hearing level showed that the Veteran was more limited than determined by the State agency consultant. Further, the ALJ noted that the State agency consultant did not adequately consider the combined effect of the Veteran's impairments. The ALJ found that the Veteran was unable to perform any past relevant work and noted that the demands of the Veteran's past relevant work exceeded the Veteran's residual functional capacity. The ALJ found that the Veteran's acquired job skills did not transfer to other occupations. The ALJ found that considering the Veteran's age, education, work experience, and residual functional capacity, there were no jobs that existed in significant numbers in the national economy that the claimant could perform. In May 2021, pursuant to the April 2021 Board remand, the AOJ referred the matter to the Director, Compensation Service, Department of Veteran's affairs (Director) for consideration of an extraschedular rating. In a referral memorandum from the AOJ to the Director, Compensation Service, Department of Veteran's Affairs (Director), the author recommended a grant of entitlement to TDIU benefits on an extra-schedular basis. See May 2021 Correspondence; May 2021 Electronic Signature. The author found that given the Veteran's employment history and his service-connected disability picture as a whole, it was recommended that entitlement to TDIU benefits on an extra-schedular basis under 38 C.F.R. § 4.16(b) be granted. In reaching this conclusion, the author noted that the evidence supported findings that the Veteran's service-connected disabilities had impacted his ability to work and had rendered him unable to obtain and maintain gainful employment throughout the pendency of his appeal. However, upon review of the record, the Director in a subsequent May 2021 advisory opinion denied the Veteran's claim of entitlement to a TDIU under 38 C.F.R. § 4.16(b). The Director noted that although there were limitations due to the Veteran's service-connected conditions, the preponderance of the evidence did not show that the service-connected conditions prohibited the Veteran from obtaining or maintaining gainful employment. The Director noted that it was well known that the American workplace had had a dramatic shift in the labor force over the last several decades; and it had long been known that Americans generally had less strenuous jobs compared to those of years ago; and the decline was due in part to the increasing reliance on computers, the Internet and e-mail. The Director noted that there were many jobs in the workplace that required only light activity and for which a person with a high school education would be capable of performing; that is, a person need not be college educated or highly skilled to be productive in the current work environment. The Director found that the evidence only showed that he may be limited in performing the duties associated with a certain position; it did not convincingly show that his ability to work in other suitable positions was entirely compromised by disabilities he incurred in service. The Director determined that after considering all relevant evidence; including, but not limited to the Veteran's education, training, and work history, the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment. The Board notes that the Veteran obtained his GED prior to 1988, and has stated that he did not have experience writing or completing reports as a machinist for almost 20 years. The Director did not discuss the necessary skills and experience that the Veteran could have gained when he obtained is GED prior to 1988 or during his work as a cook, machinist or security guard, which would have enabled him to effectively use computers, the Internet, e-mail, or any other skills that would have been necessary for employment in a less strenuous occupation. The Board notes that there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Thus, the Board finds that the Director's finding is not binding on the Board in determining whether the Veteran is entitled to a TDIU as a schedular or extraschedular rating. As noted, from October 30, 2009, the Veteran has met the rating percentage criteria for TDIU under 38 C.F.R. § 4.16(a). Thus, the issue before the Board is whether the Veteran is entitled to a TDIU as a schedular rating. The Board has been presented with positive and negative evidence regarding the impact that the Veteran's service-connected disabilities have had on his employability. The Board notes that the Veteran only has a GED with no additional training. The record demonstrates that the Veteran served as a cook for 4 years during service; as a machinist for almost 20 years, and as a security guard for 2 years, but had to stop working due to his symptoms of his service-connected disabilities, including low back pain and right leg pain. The Veteran has credibly and competently reported that his work as a machinist and as a security guard required him to stand or walk for long periods. Both the medical and lay evidence of record establishes that the Veteran's service-connected disabilities significantly impaired his ability to stand and walk for long periods of time. The evidence of record does not support a finding that the Veteran has any additional skills which would enable him to work in a less strenuous work environment, which did not require him to stand or walk for long periods. Thus, the Board finds that, in light of the Veteran's education and work experience, the evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities render him unemployable. Resolving all reasonable doubt in favor of the Veteran, his service-connected disabilities have precluded him from engaging in substantially gainful employment, for the entire period on appeal. Accordingly, entitlement to a TDIU is warranted from October 30, 2009 and the claim is granted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.