Citation Nr: 21075593 Decision Date: 12/21/21 Archive Date: 12/20/21 DOCKET NO. 13-20 200 DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective July 18, 2017. FINDING OF FACT Effective July 18, 2017, the Veteran's service-connected disabilities have rendered him unable to obtain and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met, effective July 18, 2017. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1987 to April 1991. This matter arose following an April 2012 decision in which the agency of original jurisdiction (AOJ) granted entitlement to service connection for right knee status post-arthroscopic surgery, among other disabilities, and assigned an evaluation of 10 percent effective December 15, 2010. The Veteran appealed, seeking an increased rating for his right knee disability. During the course of that appeal, the Veteran and his former representative contended that he was entitled to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2019, the Board remanded the Veteran's claim for a TDIU, instructing the AOJ to develop and adjudicate the Veteran's claim in the first instance. Subsequently, the Board denied the Veteran's claim for a TDIU in a September 2020 decision, concluding that the Veteran was employed and that his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. The Veteran appealed the Board's September 2020 denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court entered a Joint Motion for Remand (JMR) of the parties. The Order vacated and remanded the Board's September 2020 decision, as the parties agreed that the Board erred in failing to address both the economic and noneconomic components recognized in Ray v. Wilkie, 31 Vet. App. 58 (2019). TDIU The Veteran maintains that he is unemployable due to the symptoms of his service-connected posttraumatic stress disorder (PTSD), right knee arthritis with meniscal tear, degenerative arthritis status post-operative right ankle fracture, degenerative arthritis of the spine with intervertebral disc syndrome (IVDS), right knee removal of semilunar cartilage, right knee status post-arthroscopic surgery, left lower extremity radiculopathy, right lower extremity radiculopathy, right hip strain with thigh impairment, left hip strain, scars, status post right ankle open reduction internal fixation, right knee arthroscopic repair scars, and right ankle open reduction scar. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU where there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray, 31 Vet. App. at 73. The economic component refers to an occupation earning more than marginal income, determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 31 Vet. App. at 73. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Ray, 31 Vet. App. at 73. The Board will consider a veteran's history, education, skills, and training, as well as whether the veteran has mental and physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations). Ray, 31 Vet. App. at 73. An award of a TDIU is an individualized determination, specific to the veteran's particular circumstances, such as his history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Effective July 18, 2017, the Veteran has been awarded service connected for the following disabilities: PTSD, right knee arthritis with meniscal tear, degenerative arthritis status post-operative right ankle fracture, degenerative arthritis of the spine with IVDS, right knee removal of semilunar cartilage, right knee status post-arthroscopic surgery, left lower extremity radiculopathy, right lower extremity radiculopathy, right hip strain with thigh impairment, left hip strain, scars, status post right ankle open reduction internal fixation, right knee arthroscopic repair scars, and right ankle open reduction scar. His total combined rating for these disabilities has been 80 percent or higher since July 18, 2017. Moreover, his rating for PTSD has been 50 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis beginning July 18, 2017. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board concludes that a TDIU is warranted. The record demonstrates that the Veteran has completed high school and earned an associate's degree in construction in 2003. He has also completed an apprenticeship in drywall and lathing as a part of the coursework for his associate's degree. All the Veteran's reported post-service employment has been related to construction, carpentry, and maintenance. He reports working as a journeyman drywaller and lather, a cabinetmaker, and a maintenance mechanic and carpenter at various points in his employment history. Currently, the Veteran works as a handyman for a property management company and performs side jobs in lawn maintenance. However, he also asserts that his last gainful employment ended when he was fired from his job as a maintenance mechanic and carpenter in mid-2017 and that all his employment since then has been brief and marginal. The Board agrees with this assessment. The Veteran worked as a journeyman drywaller and lather for one week in July 2018 and earned $1,762. He again worked as a journeyman drywaller and lather in July 2019 and earned $878.83. In his current handyman position, he reports that he has worked approximately ten hours in the two weeks since he was hired and that he earns $40 per hour. Additionally, he has received approximately $500 per month from his side lawn maintenance jobs. Furthermore, the Veteran submitted records from the Social Security Administration (SSA) demonstrating that his earnings for Social Security purposes totaled $20,270 in 2017, $1,762 in 2018, $10,546 in 2019, and $116 in 2020. Thus, the evidence shows that the Veteran's annual income has been below the poverty threshold for one person since 2018, as the U.S. Department of Commerce determined the poverty threshold to be $12,060 in 2017, $12,140 in 2018, $12,490 in 2019, and $12,760 in 2020. See https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines/prior-hhs-poverty-guidelines-federal-register-references. As such, the Board concludes that the Veteran's employment after 2017 has been marginal. Ray, 31 Vet. App. at 73. As for the noneconomic component discussed in Ray, the Board finds that the evidence shows that the Veteran's service-connected disabilities impact his ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his right knee, right ankle, and back disabilities. The Veteran maintains that his previous employment in construction, carpentry, and maintenance required him to walk and stand constantly, which caused pain and swelling in his feet and legs. His jobs also involved frequent lifting and pushing of heavy objects, which was difficult on his legs and back. He noted that he had to sit and take breaks every hour due to this pain and discomfort. These lay observations are consistent with the opinions of the VA examiners in the evidence of record. Throughout the period on appeal, multiple VA examiners have opined that the Veteran's disabilitiesparticularly his knee, ankle, and back disabilitiesimpacted his ability to perform occupational tasks. For instance, an April 2019 VA examiner determined that the Veteran should avoid carrying and hauling loads, especially on hilly or uneven terrain, due to his service-connected knee disabilities. He also noted that the Veteran subjectively endorsed that he has difficulty standing, walking, lifting, and sitting for prolonged periods and that he must rest throughout the day when his knee becomes fatigued. Similarly, a July 2019 VA examiner opined that the Veteran's service-connected right knee disabilities rendered the Veteran unable to do any work requiring long periods of walking or climbing stairways. Furthermore, a VA examination from January 2018 indicated that the Veteran should avoid occupational tasks involving running or jumping and that he required breaks from walking every 30 minutes. Likewise, the examiner who performed the April 2019 VA examination indicated that the Veteran's service-connected right ankle disabilities would cause him to struggle with occupational tasks requiring prolonged ambulation or carrying and hauling loads, particularly on hilly or uneven terrain. As for the Veteran's service-connected back disability, the April 2019 examiner opined that the Veteran should avoid strenuous lifting and hauling. While the earlier VA examination in January 2018 concluded that the Veteran's service-connected back disability did not functionally affect his ability to work, the Board notes that entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether the Veteran can secure and follow a substantially gainful occupation based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected PTSD. The Veteran reports that he frequently had conflicts with his coworkers and supervisors due to his PTSD and that no one wanted to work with him because of this. The October 2019 VA examiner offered a similar opinion regarding the effect of the Veteran's PTSD on his employability. He noted that the Veteran was unemployed at the time of the examination due to mental issues and problems accepting feedback from others. The examiner also found that among the Veteran's PTSD symptoms were disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. As noted above, all of his prior employment, education, and training was related to physical work like construction, carpentry, and maintenance, which he is unable to do due to the physical effects of his disabilities. However, the Board also notes that the Veteran was afforded vocational rehabilitation to enable him to gain the training necessary to obtain a job that would not aggravate his service-connected disabilities, but that he did not continue with those vocational rehabilitation services. After its review of the evidence of record, the Board concludes that the evidence supporting and against the grant of a TDIU is at least in relative equipoise. Given this conclusion, the Board will resolve any reasonable doubt in favor of the Veteran. A TDIU is therefore warranted from July 18, 2017, the date the Veteran met the schedular criteria. Based on the Veteran's arguments and contentions, see e.g., November 2021 Appellate Brief, the Board finds that the award of a TDIU, effective July 18, 2017, represents a full grant of the benefits sought on appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.