Citation Nr: 21074386 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 11-12 670 DATE: December 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to December 16, 2020, is denied. Entitlement to TDIU for the period from December 16, 2020, is granted. FINDINGS OF FACT 1. For the period prior to December 16, 2020, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities precluded him from securing and following all forms of substantially gainful employment. 2. For the period prior from December 16, 2020, the evidence shows that the Veteran's service-connected disabilities preclude him from securing and following all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to December 16, 2020, the criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 2. For the period from December 16, 2020, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to May 1970. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this issue was previously denied by the Board in November 2017 and October 2020. Regarding the November 2017 Board denial, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2019 Court Order, pursuant to a January 2019 Joint Motion for Remand (JMR), the Court vacated the Board's November 2017 decision and remanded the claim for action consistent with the terms of the parties' JMR, which included requesting the Veteran's Social Security Administration (SSA) records and to provide clarification regarding the Veteran's capability of sedentary employment given his education and employment background. Regarding the October 2020 Board denial, the Veteran appealed the decision to the Court, and in an August 2021 Court Order, pursuant to the August 2021 JMR, the Court vacated the Board's October 2020 decision and remanded the claim for action consistent with the terms of the parties' JMR, which included addressing a December 2009 employment information form that stated the Veteran was "unable to fulfill job requirement" and a report that the Veteran's former employer provided concessions at the time the Veteran stopped working. As such, this matter is again before the Board. TDIU 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 v. Brown, 4 Vet. App. 361 (1993). Whether 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"). 1. Entitlement to TDIU for period prior to December 16, 2020. 2. Entitlement to TDIU for the period from December 16, 2020. The Veteran contends that he is entitled to TDIU because his service-connected disabilities have rendered him unable to secure and follow substantially gainful employment since January 1, 2010, his last date of full-time employment, as noted on his December 2009 Request for Employment Information form. The Veteran's service-connected disabilities are rated as follows: a temporary total rating was assigned for coronary artery disease effective March 8, 2016, a 10 percent rating was assigned for coronary artery disease, effective July 1, 2016, and a 60 percent rating for coronary artery disease was assigned for coronary artery disease, effective August 19, 2020; a 40 percent rating for prostate cancer, effective July 1, 2003; a 20 percent rating for diabetes mellitus type II (DM II), effective January 31, 2006; a 10 percent rating for left ankle residuals of a gunshot wound, effective August 1, 1984; a 10 percent rating for right ankle residuals of a gunshot wound, effective December 22, 2009; a 10 percent rating for peripheral neuropathy of the right lower extremity, effective December 22, 2009; a 10 percent rating for peripheral neuropathy of the left lower extremity, effective December 22, 2009; noncompensable ratings for left upper leg and sternal scars, both effective March 8, 2016; and a noncompensable rating for loss of use of a creative organ, effective August 16, 2001. The Veteran's combined schedular disability rating throughout the appeal period is 70 percent from December 22, 2009 (except for the period from March 8, 2016 through June 30, 2016, when the Veteran was in receipt of a temporary total 100 percent rating based on the need for convalescence following surgery), and 90 percent from August 19, 2020. Accordingly, the Veteran meets the schedular threshold percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16(a) throughout the period on appeal. The remaining question, then, is whether, the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation for the period on appeal since January 1, 2010, the date the Veteran reported becoming too disabled to work and his last day of full-time employment. Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. With respect to education, training, and work experience, the Veteran reported he had a high school education, no other education and training, and worked at Trane Company (factory) from 1970 until 2010. The Veteran drove a forklift when he stopped working but had previously worked on the assembly line. On his December 2009 application for TDIU, the Veteran reported he was unable to work due to his service-connected DM II. A December 2009 Employment Information Form by his employer notes the Veteran was "unable to fulfill job requirement." Period Prior to December 16, 2020 In a September 2010 lay statement, the Veteran stated that driving a forklift caused pain and swelling in his ankles but did not mention any functional impairment due to his DM II. On his May 2011 Form 9, the Veteran again reported being unable to work due to swelling and pain in his ankles. He reported being unable to stand, walk, or make steps without swelling and pain. Notably, during a May 2016 VA examination, the Veteran reported that he retired due to "length of service." In August 2016, the Veteran's wife reported that the Veteran was sleepwalking, unable to control his bladder, and retired because he was unable to stay awake, as well as having constant pain. In August 2020, the Veteran submitted another application for TDIU and listed only his service-connected coronary artery disease as the disability that prevents him from securing or following and substantially gainful occupation. On the same form, the Veteran reported that he became too disabled to work and last worked fulltime in March 2016. This is inconsistent with the Veteran's previous December 2009 application for TDIU when he reported he became too disabled to work on January 1, 2010. The Veteran also indicated on the December 2009 TDIU form that he had not attempted to obtain employment since he became too disabled to work. Turning to the medical evidence of record, for the period prior to December 16, 2020, several VA examiners provided opinions as to the Veteran's service-connected disabilities' functional impact on his ability to work. In February 2010, a VA examiner opined that the Veteran's medical problems would not have any significant effect on his ability to continue his work as a forklift driver. The examiner found that the Veteran had "good bladder function" and control, as well as and no bowel impairment related to his service-connected prostate cancer. Regarding the Veteran's DMII, the examiner found that the Veteran did not have any restriction of activity. The Veteran reported no headaches or shortness of breath, and that he exercises by walking half a mile a day. The Veteran denied numbness or tingling in the extremities. Objective imaging at the February 2010 examination reflected normal appearance of the ankles and small metallic fragments. In addition, the examiner opined that the Veteran would be able to work considering his service-connected shrapnel wounds, noted as superficial wounds, to the right and left ankle, and that the wounds had no residual effects. The examiner noted that the Veteran worked for 40 years following the injury to his ankles during service. In May 2011, in support of his TDIU claim, the Veteran submitted private treatment records regarding an examination of his ankles. However, these findings were unremarkable, as the physician noted "essentially normal" findings of the left and right ankles. The record noted the metal fragments from his old injury but found the bones of his ankles intact and normally aligned with no bone lesions or arthropathy shown. Pursuant to a February 2016 Board remand, several VA examinations were conducted in order to assess the Veteran's functional limitations due to his service-connected disabilities. A May 2016 VA diabetes disability benefits questionnaire (DBQ) indicated that the Veteran takes multiple oral medications for his DMII but is not on insulin. The Veteran reported that he was seen by a private ophthalmologist in 2015 and was told he had no DMII-related changes in his eyes. The Veteran reported no history of eye surgery or cataracts and denied renal or kidney issues. The Veteran reported no ongoing numbness or tingling in his feet, lower extremities or upper extremities. The examiner found that the Veteran's service-connected DM II impacted his ability to work. The examiner explained that the Veteran would need frequent breaks and a private place with hand-washing facilities and disposal for glucose testing strips and that there would be limitations on continuous physical exertion, working in extreme temperature or moist areas, working at unprotected heights, and working in isolated areas alone. The examiner stated that the Veteran's service-connected diabetic peripheral neuropathy did not impact his ability to work. A May 2016 VA prostate cancer DBQ indicated that the Veteran's prostate cancer was in remission and that there have been no recurrences or additional treatments. The examiner stated that while the Veteran experienced occasional urine leakage with strain, he did not require padding and did not experience nocturia secondary to his prostate cancer. The report indicated that the Veteran was not on medication. There were no gastrointestinal symptoms or hematochezia to suggest proctitis. There was no recent colonoscopy and there was no hematuria to suggest cystitis. The Veteran reported no current erections, and has had no additional treatments. The Veteran was noted to have very mild stress urinary incontinence and erectile dysfunction. The examiner stated that the Veteran's voiding dysfunction does not require the wearing of absorbent material or the use of an appliance and does not cause increased urinary frequency or signs or symptoms of obstructed voiding. The examiner stated that the Veteran's prostate cancer residuals would not impact his ability to work. A May 2016 VA ankle conditions DBQ indicated that the Veteran reported no symptoms or pain in the lower extremities or ankles. He denied that pain, weakness, fatigability, or incoordination limited his functional ability with repeated use over time. He further reported the original injuries were only "flesh wounds." The Veteran reported no flares or decrease in function. There was no infection from the retained shrapnel. The Veteran had not undergone surgery or other procedures for the ankle condition and was not being treated for an ankle condition. The Veteran denied the use of assistive devices or braces for his service-connected ankle disabilities. The VA examiner concluded that the Veteran's service-connected ankle disabilities did not impact his ability to work. A May 2016 heart conditions DBQ revealed that the Veteran underwent a coronary artery bypass graft in March 2016 and was required to take continuous medication for his coronary artery disease. The Veteran reported that he was able to walk about 2-3 miles per day before experiencing any symptoms. He denied angina or fatigue. Physical examination of the heart revealed slightly elevated blood pressure but no other abnormalities. The examiner found that the Veteran's coronary artery disease would impact his occupational functioning. The examiner opined that resulting work limitations may include avoidance of prolonged exertion, heavy lifting, or carrying, and the Veteran may need to be accommodated to attend medical appointments or procedures. A May 2016 VA examiner considered the functional effects of all of the Veteran's service-connected disabilities, excluding his coronary artery disease which was not yet service-connected, on his ability to obtain and maintain gainful employment. The examiner opined that the Veteran's scars, ankle disabilities and peripheral neuropathy caused no impact on the Veteran's ability to work. The examiner stated that the Veteran's DMII and prostate cancer would have a minor functional impact on employability and could be easily accommodated. Overall, the examiner opined that the Veteran's service-connected disabilities would affect some types of employment, but that the Veteran could obtain gainful employment in light duty occupations with minimal workplace accommodation. VA treatment records throughout the appeal period are consistent with the findings of the May 2016 and February 2010 VA examinations. VA treatment records do not show significant treatment or complaints related to the Veteran's service-connected disabilities that were not already considered by the February 2010 or May 2016 VA examiners. While the Veteran asserts that his service-connected disabilities precluded him from securing and following any substantially gainful employment, for the period prior to December 16, 2020, the evidence does not support a finding that the Veteran was incapable of maintaining all forms of gainful employment consistent with his work history and level of education. The Veteran reported being able to walk 2-3 miles per day before experiencing any symptoms related to his coronary artery disease, had most consistently denied any pain, numbness, or tingling in his ankles or lower extremities, experienced only mild urinary leakage related to his prostate cancer residuals that did not require an absorbent pad, and had well-controlled DMII which would require only minor accommodations by an employer. While the Board acknowledges that the Veteran only has a high school education and work experience pertaining to manual labor, the medical evidence of record for the period prior to December 16, 2020 does not indicate that the Veteran was incapable of securing and following all gainful employment that would require some degree of manual labor. Furthermore, and as previously noted, the Veteran has made statements regarding his symptoms and reason for retiring that are both internally inconsistent and inconsistent with the medical evidence of record. For instance, in September 2010, the Veteran reported being unable to continue work as a forklift driver due to his ankle symptoms of pain and swelling; however, the May 2016 and February 2010 VA examinations show the Veteran reported walking half a mile "frequently without difficulty," as well as no pain or symptoms in his ankles, and no flares-ups or decrease in function. The Veteran and his spouse have also reported that he experienced symptoms such as sleepwalking and an inability to stay awake that have not been related to a service-connected disability and are not noted in the available medical treatment records. Thus, while the Veteran has reported that he was unemployable for the period prior to December 16, 2020 due to his service-connected disabilities, the medical evidence of record does not support his contentions. As noted above, the Veteran reported at the May 2016 VA examination that he retired because of "length of service." That is consistent with the fact that the Veteran worked at the same company for 40 years. In addition, the examiners' descriptions of the impairment caused by the Veteran's service-connected disabilities are consistent with the ratings assigned for those disabilities for the period prior to December 16, 2020. Even when all of the symptoms are considered together, the overall disability picture does not suggest that the Veteran was unemployable during the period prior to December 16, 2020. Rather, the preponderance of the evidence for the period prior to December 16, 2020 shows that the Veteran had some limitations as a result of his service-connected disabilities. However, as the May 2016 VA examination stated, these limitations would necessitate minor accommodations. In addition, as noted in the JMR, even though the December 2009 Employment Information form noted the Veteran was "unable to fulfill job requirement," the preponderance of the evidence shows that the Veteran chose to retire after 40 years at the same job due to his "length of service" as reported by the Veteran throughout the record, and not due to his service-connected disabilities, as supported by the medical evidence of record. In addition, the JMR notes that the Veteran was provided concessions due to his service-connected ankle conditions and prostate cancer treatment at the time he stopped working, as indicated on the December 2009 Employment Information form. The record also indicates that the Veteran stated that he was transferred from working on the assembly line to running a forklift so he would not have to stand on his feet all day. However, this is inconsistent with the Veteran's own reports of his ankle and lower extremity symptoms. The Veteran denied symptoms of pain, fatigue, weakness with repeated use over time in the May 2016 VA examination, and reported walking half a mile a day "frequently without difficulty" in his February 2010 VA examination. Moreover, the medical record throughout the appeal period shows that although the Veteran had occasional urine leakage due to his cancer treatment, this has not required the use of padding or absorbent material. Furthermore, the record does not show any details regarding the extent of these concessions at his former job. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against entitlement to TDIU for the period prior to December 16, 2020. 38 U.S.C. § 5107(b). Period from December 16, 2020 A December 2020 heart conditions DBQ pursuant to the Veteran's August 2020 increased rating claim indicates the Veteran is very easily fatigued, has dyspnea/shortness of breath upon exertion, is limited in his activities, and experiences occasional lightheadedness. The Veteran's condition requires continuous medication. His metabolic equivalents (METs) test was found to be >3-5 METs, which is consistent with activities of light yard work and brisk walking and is the lowest activity level at which the Veteran experiences dyspnea, fatigue, and dizziness. In addition, the examiner noted that the Veteran's heart condition does impact his ability to work, as he would have difficulty with walking and running for long periods, as well as difficulty with ascending/descending stairs, squatting, kneeling, and heavy lifting due to low endurance, easy fatigability, chest pain, and weakness. The Veteran's heart condition was noted as a progression of his previous diagnosis, and his rating was increased from 10 percent to 60 percent based on these findings. The Board finds that the Veteran's functional limitations due to his heart condition would preclude him from engaging in substantially gainful employment when considered with his education level and occupational experience. Thus, in light of the above, and resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise with respect to the issue of whether the Veteran is capable of securing and following substantially gainful employment for the period from December 16, 2020. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, TDIU for the period from December 16, 2020, is warranted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.