Citation Nr: 21075627 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 08-24 389 DATE: December 21, 2021 ORDER For the rating periods from May 1, 2009 to May 1, 2010, and from July 22, 2010 to present (excluding from August 30, 2017 to October 1, 2018 and from March 6, 2019 to May 1, 2019 when a 100 percent (total) combined rating is assigned) a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED From April 25, 2007 to March 25, 2008 and from May 1, 2010 to July 22, 2010 TDIU is remanded. FINDING OF FACT From May 1, 2009 to May 1, 2010, and from July 22, 2010 to present the Veteran was unable to maintain substantial gainful employment due to service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, from May 1, 2009 to May 1, 2010, and from July 22, 2010 to present, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from November 1974 to March 1975, and from March 1978 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision from the Regional Office (RO), which, in pertinent part, granted service connection for a low back disability, assigning a noncompensable (0 percent) initial disability rating (effective April 25, 2007). During the pendency of the appeal for a higher initial disability rating for the low back disability, the Veteran indicated that he was unemployed due to the service-connected disabilities. This assertion attached a TDIU claim to the issue of a higher initial disability rating for a low back disability for the rating period from April 25, 2007. See December 2010 VA examination report. See Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). From March 25, 2008 to May 1, 2009, August 30, 2017 to October 1, 2018, and March 6, 2019 to May 1, 2019, the combined rating for all service-connected disabilities is 100 percent, rendering the claim for TDIU due to service-connected disabilities moot during these periods because assigning a separate TDIU for these periods would result in duplicate counting of the service-connected disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008); see also Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the relevant rating periods for TDIU is from April 25, 2007 to March 25, 2008, from May 1, 2009 to August 30, 2017, from October 1, 2018 to March 6, 2019, and from May 1, 2019 forward. TDIU was previously before the Board in June 2014, January 2018, and November 2019. In the November 2019 Board Decision, the Board denied the appeal for TDIU, finding that the Veteran abandoned the claim by failing to comply with requests to return the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim). The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court). Of note, the Veteran submitted the requested TDIU Claim in June 2020, after the November 2019 Board Decision found that the Veteran had abandoned the claim. In a February 2021 Memorandum Decision, the Court remanded the matter for the Board to provide adequate reasons and bases as to why the claim was deemed abandoned before the one-year time limit from the second March 2019 TDIU notice letter to submit the requested evidence expired, and why a claim form for TDIU was needed in this case. The duties to notify and assist in this case have been rendered moot by the grant TDIU from May 1, 2009 to May 1, 2010, and from July 22, 2010 to present (excluding periods of a combined 100 percent disability rating), which is a full grant of benefits sought for those periods. For the periods from April 25, 2007 to March 25, 2008, and from May 1, 2010 to July 22, 2010, TDIU is remanded for further development. TDIU Disability ratings are determined by applying the criteria set forth in VA's Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose 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, or of 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). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 1. TDIU May 1, 2009 to May 1, 2010, and from July 22, 2010 to present During the course of the appeal, the Veteran has generally asserted that the combined effect of the service-connected physical disabilities has rendered him unable to maintain work. The Veteran reported that he has a high school education and a history of employment that involves varying levels of physical exertion, having last worked full time as a roofer from 1995 to 2002, a meter maid from 1993 to 1995, and a sanitation driver from 1986 to 1993. See June 2020 TDIU Claim, see also January 2011 VA treatment record, October 2002 Social Security Administration (SSA) record. TDIU from May 1, 2009 to May 1, 2010 For the rating period from May 1, 2009 to May 1, 2010, the service-connected disabilities are right knee status post total knee arthroscopy (TKA) with traumatic arthritis (right knee disability), left knee status post TKA with arthritis (left knee disability), and low back strain with arthritis (low back disability) with a combined disability rating of 60 percent for all service-connected disabilities. The service-connected disabilities meet the requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU for the period from May 1, 2009 to May 1, 2010, as the service-connected disabilities are all orthopedic disabilities, which may be treated as one disability for the purpose of having one disability rated at least 60 percent during the relevant rating period. 38 C.F.R. § 4.16(a)(3). After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran has been unable to maintain (follow) substantially gainful employment due to the service-connected disabilities for the period from May 1, 2009 to May 1, 2010. The record shows that the Veteran has been granted Social Security disability since February 2001 for arthritis of the knees and spine. See September 2005 SSA record. During the May 2010 Board hearing the Veteran testified that the knee disabilities have caused significant pain, swelling, and problems with balance, for which he has to use a cane to move around due to "wobbly" gait. The Veteran endorsed increased symptoms if he walks up to half a mile. Additionally, he noted that his back hurts most of the time, as he experiences back pain any time he has to bend over and with turning from side to side. The Veteran testified that he has shooting back pain that radiates down the back of his legs, and he endorsed muscle spasms, described as muscle tightening and knots in the back, a couple times a week that last for two to three hours at a time. The Veteran testified that he did not realize significant or sustained improvement in his back or knee symptoms despite physical therapy, as he would often have to rest for two to three hours after a physical therapy session. The Veteran testified that he is no longer able to do his previous work as a roofer due to physical limitations of his knee disabilities, noting that he could not climb ladders due to his knee pain. The Veteran testified that he also cannot return to his previous work as a sanitation driver as his knee and back limitations prevent prolonged driving. During the relevant rating period, a review of the record shows that the knee disabilities have manifested as painful limitation of motion of the knees, strength deficits, joint effusion, popping, crepitus, giving way, and antalgic gait patterns, which require constant use of a cane. Additionally, the low back disability has manifested as painful limitation of motion of the lumbar spine, stiffness, tenderness, and muscle spasms, which moderately limits activity and are further exacerbated by prolonged sitting, walking, standing, and lifting or carrying. See July 2010 private treatment record; November 2009, March 2010, April 2010 VA treatment records; April 2009, September 2010 VA examination reports. TDIU from July 22, 2010 to present For the rating period from July 22, 2010 (excluding periods when a combined 100 percent rating is assigned), the service-connected disabilities are the right knee disability, left knee disability, low back disability, right and left lower extremity radiculopathy, tinnitus, bilateral hearing loss, and a lumbar surgical scar with a combined disability rating ranging from 70 to 80 percent for all service-connected disabilities. The service-connected disabilities meet the requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU for the period from July 22, 2010, as service-connected knee disabilities combined are rated 40 to 60 percent, which may be treated as a single disability for the purpose of having one disability rated at least 40 percent, with a combined disability rating of at least 70 during the relevant rating period. 38 C.F.R. § 4.16(a)(1). After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran has been unable to maintain (follow) substantially gainful employment due to the service-connected disabilities for the period from July 22, 2010. In addition, to the functional limitations noted above, the evidence during this rating period indicates that the Veteran continued to have bilateral knee pain that progressed in the left knee with painful limitation of motion, swelling, stiffness, and recurrent joint instability. Additionally, the Veteran's low back disability progressed to cause sharp pain that radiated to the bilateral lower extremity with numbness, tingling, and diminished reflexes. Due to the Veteran's unstable gait, the Veteran was proscribed a walker in addition to his previously prescribed cane to assist with balance and ambulation. The evidence shows that the Veteran eventually required a left knee arthroscopy and meniscectomy in August 2016 and a left knee TKA in August 2017. Additionally, the Veteran underwent a lumbar fusion and laminectomy in March 2019. See November 2010, November 2012, February 2014, April 2014, July 2015, July 2016, August 2016, November 2016, May 2017, August 2017, March 2019 VA treatment records; see also January 2017, April 2018, February 2019 VA examination reports. Additionally, the service-connected bilateral hearing loss and tinnitus manifested as difficulty hearing in certain situations and white noise or ringing in the ears that caused headaches at times. See July 2015 VA treatment record; July 2011, December 2014 VA examination reports. In light of the painful motion in the knees and back, diminished lower extremity strength and reflexes, bilateral knee joint effusion, and radicular low back pain with numbness and tingling in the lower extremities, which cause functional limitations in balancing, walking, standing, and climbing, the evidence suggest that the Veteran would not be able to perform the requirements of his previous employment as a roofer or meter maid, due to his limitations in climbing and walking. Additionally, pain, tenderness and muscle spasms in the lumbar spine which cause functional limitations in prolonged sitting, as well as lower extremity neurological symptoms and painful motion, swelling, and instability in the knees would likely limit the Veteran's ability to perform his past work as a sanitation driver given his limitations in prolonged sitting and restrictions in using the lower extremities to manipulate foot pedals on a regular basis. Moreover, in light of the Veteran's work history and high school education, the evidence does not suggest that he has many skills that would be transferable to positions that are performed in a primarily seated or sedentary positions. However, even if the Veteran does possess some skills that are transferable to jobs that are primarily performed in a seated position, the Veteran's limitations in prolonged sitting due to the symptomatology and functional impairment of the service-connected bilateral knee, low back, and bilateral lower extremity radiculopathy disabilities would likely limit the availability of such sedentary positions as well. Moreover, the Veteran's unsteady gait and required use of a cane and walker to move about would likely impede his ability to lift and carry up to 10 pounds safely in the workplace. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that, given the Veteran's functional limitations, for the period from May 1, 2009 to May 1, 2010, and from July 22, 2010 forward, the combined effect of the service-connected physical disabilities prevent the Veteran from performing the type of employment for which he is trained or engaging in other sedentary work that would require sitting for prolonged periods, and the ability to lift up to 10 pounds occasionally. Given the combined physical limitations, it is likely that the service-connected disabilities would significantly impair the ability to maintain substantially gainful employment and did so in this case from May 1, 2009 to May 1, 2010, and from July 22, 2010 forward. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met from May 1, 2009 to May 1, 2010, and from July 22, 2010 forward. REASONS FOR REMAND 2. TDIU from April 25, 2007 to March 25, 2008, and from May 1, 2010 to July 22, 2010 is remanded. The issue of entitlement to a TDIU warrants referral to the VA Director of the Compensation Service for adjudication of TDIU eligibility in accordance with 38 C.F.R. § 4.16(b). The Veteran contends that he was unemployable due to the service-connected disabilities, particularly the bilateral knee and low back disabilities. See June 2020 TDIU Claim. For the TDIU rating period from April 25, 2007 to March 25, 2008, and from May 1, 2010 to July 22, 2010, excluding the period from March 25, 2008 to May 1, 2009 when VA has granted a 100 percent schedular rating, the service-connected disabilities are right knee residuals (30 percent), right knee degenerative arthritis (10 percent), left knee disability (10 percent), low back disability (10 percent), , with a combined schedular disability rating of 50 percent from April 25, 2007 to March 25, 2008, and from May 1, 2010 to July 22, 2010. The threshold combined rating percentage requirements for TDIU eligibility under the provisions of 38 C.F.R. § 4.16(a) are not met for the TDIU rating period from April 25, 2007 to March 25, 2008, and from May 1, 2010 to July 22, 2010, as there is not one service-connected disability rated at least 60 percent or one service-connected disability rated at least 40 percent or higher with a combined rating percentage for all the service-connected disabilities of at least 70 percent. The Veteran reported that he last worked full time in 2002 and that he retired from a position as a roofer because he was no longer able to meet the physical demands of the job due to the service-connected disabilities. See June 2020 TDIU Claim, May 2010 Board Hearing Transcript. Medical evidence during the relevant rating periods indicates that the Veteran had severe arthritis in both knees, painful limitation of motion, and notable swelling in the right knee. The Veteran endorsed difficulty with pain at rest, while getting in and out of bed, and when getting out of a car due to the knee disabilities. The evidence also shows low back pain was being managed with steroid injections. See March 2008 private treatment records; March 2007, November 2007 VA treatment records; September 2007, April 2009 VA examination reports. For the reasons discussed above, a remand is necessary for the RO to refer the TDIU issue to the VA Director of Compensation and Pension Service for consideration of the assignment of TDIU under 38 C.F.R. § 4.16(b) for the period from April 25, 2007 to March 25, 2008, and from May 1, 2010 to July 22, 2010. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (where a claimant does not meet the schedular requirement of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Compensation and Pension Director for consideration); Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is an adjudication that is adopted by the RO and reviewed de novo by the Board). For the relevant rating periods, TDIU is REMANDED for the following action: Refer the case to the VA Director of the Compensation Service for adjudication of a TDIU for the rating periods from April 25, 2007 to March 25, 2008, and from May 1, 2010 to July 22, 2010. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.