Citation Nr: 21075829 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 09-26 924 DATE: December 21, 2021 ORDER Prior to January 12, 2009, entitlement to a total disability rating due to individual unemployability (TDIU) is DENIED. From January 13, 2009, entitlement to a total disability rating due to individual unemployability (TDIU) is GRANTED. FINDINGS OF FACT 1. Prior to January 12, 2009, the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. 2. On and after January 13, 2009, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to January 12, 2009, the criteria are not met for entitlement to a TDIU rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2020). 2. On and after January 13, 2009, the criteria are met for entitlement to a TDIU rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from May 1992 to February 1995. 1. Prior to January 12, 2009 entitlement to a total disability rating due to individual unemployability (TDIU) is denied. 2. On and after January 13, 2009, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. On June 26, 2008, the Veteran submitted a VA Form 21-4138. Therein, the Veteran initiated claims for increased ratings for the service-connected bilateral knee and hearing loss disabilities. In June 2017, the Board addressed the Veteran's claim for a TDIU rating. At that time, the Board determined that TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim to the agency of original jurisdiction (AOJ) in order for it to supply the Veteran notice of how to substantiate entitlement to a TDIU rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). 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. 38 C.F.R. § 3.340 (a)(1). Total disability may or may not be permanent. Id. 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). A 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. 38 C.F.R. § 4.16 (a). 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. Id. 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. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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, 4 Vet. App. at 363. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. On January 12, 2009, the Veteran underwent a VA examination that addressed the severity of his service-connected bilateral knee disabilities. At that time, the Veteran reported current fulltime employment, which had lasted the prior 2 to 5 years. The Veteran reported that he lost 4 weeks of work, during the prior year, for a knee arthroscopy procedure and recovery. On January 10, 2011, a notation was generated at the Amarillo Healthcare System (HCS). Therein, a provider noted that knee surgery, and resultant limitations on job performance, had resulted in the Veteran's unemployment for the last 1 or 2 years. On June 24, 2011, a notation was generated at the Lubbock VA Outpatient Clinic (VAOPC). Therein, a provider noted that the Veteran had reported that he had quit work as a diesel mechanic, and he had returned to school. On August 14, 2012, the Veteran submitted a VA Form 21-4138. Therein, the Veteran relayed that he was unable to return to work and endured extreme financial problems. In October 2012, the veteran underwent a VA examination that addressed the severity of a service-connected left ankle disability. At that time, the Veteran reported that when his left ankle flares up, he had to sit down and take some pain medicines for the pain until it resolves. The examiner reported that the Veteran used to be a mechanic and on his feet all the time and, because of his knee and ankle problems, he enrolled in a Physical Therapy course to change careers. In December 2012, a knee and lower leg disability benefits questionnaire (DBQ) was associated with the claims file. Therein, the examiner relayed that knee and ankle pain limited the amount of time the Veteran could tolerate being on his feet. In February 2014, the Veteran underwent a VA examination that addressed the severity of hearing loss and tinnitus conditions. At that time, the examiner opined that the Veteran's hearing loss and tinnitus would impact the ordinary conditions of daily life, to include the ability to work. In May 2014, the Veteran underwent a VA examination that addressed the severity of thoracolumbar spine conditions. At that time, the Veteran reported unemployment since March 2012, because of an achilles tendon injury. The examiner opined that the Veteran's thoracolumbar spine condition would impact the ordinary conditions of daily life, to include the ability to work. The Veteran relayed that employers lost interest in hiring him after he relayed his health issues. In October 2015, the Veteran underwent VA examinations that addressed the severity of hip, thigh, and knee conditions. At that time, the examiner relayed that the conditions impacted the Veteran's function in the workplace by limiting his standing, walking, and sitting abilities. In August 2015, the Veteran submitted a VA Form 21-4138. Therein, the Veteran requested an increased rating for his service-connected right knee disability. The Veteran relayed that, "I'm unable to work with these doctor-ordered restrictions (not to mention the pain and discomfort)." Again, in June 2017, the Board addressed the Veteran's claim for a TDIU rating. At that time, the Board determined that TDIU was raised by the record. See Rice, 22 Vet. App. 447. The Board remanded the claim to the AOJ in order for it to supply the Veteran notice of how to substantiate entitlement to a TDIU rating. In September 2016, a notation was generated at Texas Tech Physicians. Therein, a provider reported that the Veteran sought a referral for orthopedic surgery. At that time, the Veteran reported that he was unable to work. In January 2017, a notation was generated at the Amarillo VA Medical Clinic (VAMC). At that time, a provider reported that the Veteran was unable to work, because he did not pass a physical and was unable to retain a CDL license. In June 2020, the Board addressed the Veteran's claim for a TDIU rating. At that time, the Board remanded the claim because it was inextricably intertwined with a remanded claim for an increased rating for a service-connected right knee disability. In May 2021, the Board addressed the Veteran's claim for a TDIU rating. At that time, the Board remanded the claim to the AOJ in order to obtain information that addressed the Veteran's employment history during the claim period. In May 2021, the Veteran submitted a VA Form 21-8940. Therein, the Veteran relayed that he became too disabled to work (as a truck driver) in May 2018. In July 2021, a VA Form 21-4138 was associated with the claims file. Therein, it was reported that the Veteran relayed that he had not worked in over a year because of health issues. The Veteran relayed that he had sold all of his equipment, because his service-connected disabilities prevented truck driving and the maintenance / renewal of his CDL license. In August 2021, the Veteran underwent VA examinations that addressed scars, lumbar spine, knee and lower leg, muscle, hip and thigh, and ankle disabilities. The examiner reported that the Veteran's muscle and scar disabilities would not impact his ability to function in the workplace. However, the examiner opined that each of the Veteran's service-connected ankle, knee and lower leg, and hip and thigh disabilities would impact the Veteran as follows: "(t)he veteran would have difficulty with occupations that required him to sit for prolonged periods, stand for prolonged periods, walking distances, bending, lifting due to the back, hip, knee, ankle conditions. He would require breaks throughout the day from these activities due to his chronic conditions." In September 2021, the AOJ issued a supplemental statement of the case (SSOC). Therein, the AOJ noted that the Veteran met the schedular criteria for TDIU consideration. The AOJ also noted that the Veteran's VA treatment records, by themselves, did not indicate that the Veteran was unable to secure or follow substantially gainful employment because of his multiple service-connected disabilities. The AOJ observed that, while the Veteran's service-connected disabilities limit some employment, it was not shown that they preclude all substantially gainful employment. After review of the claims file, the Board observes that the Veteran has been service connected for following disabilities throughout the claim period: left knee, bilateral patellofemoral syndrome, tinnitus, and bilateral hearing loss. The Board also observes that the Veteran was service connected for the following disabilities during a portion of the claim period: left and right lower extremity radiculopathy, lumbar strain, ruptured achilles tendon, right ankle, bilateral hip arthritis, and bilateral knee scars. In short, the Veteran's service-connected disabilities meet the schedular requirements for TDIU. After deliberate review of the claims file, the Board finds that evidence reflects that the Veteran maintained substantially gainful employment between June 26, 2008 and January 12, 2009. Importantly, the Board notes that the Veteran reported between 2 and 5 years of current, substantially-gainful employment during the VA examination on January 12, 2009. Consequently, the Board concludes that the preponderance of the evidence stands counter to the Veteran's claim for TDIU between June 26, 2008 and January 12, 2009. Since the preponderance of the evidence is against this claim (for the claim period), the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for TDIU between June 26, 2008 and January 12, 2009 must be denied, because the preponderance of the evidence weighs against his claim. However, the Board disagrees with the AOJ's September 2021 SSOC assessment for the TDIU claim (for the claim period on and after January 13, 2009). First, the Veteran credibly relayed in his VA Form 8940 that his service-connected disabilities impacted full-time employment during the claim period. Moreover, the Board observes that the December 2012 examiner relayed that knee and ankle pain limited the amount of time the Veteran could stand. The May 2014 and October 2015 VA examiners relayed that the Veteran's lower back, hip, thigh, and knee disorders would impact the Veteran's functional ability in the workplace, to include the ability to stand, walk, and sit. The August 2021 VA examiner opined that multiple of the Veteran's service-connected disabilities would impact the Veteran's ability to sit, stand, walk, bend, or lift in a work setting. The examiner relayed that the Veteran's service-connected back, hip, knee, and ankle disabilities would necessitate breaks during the workday. The Board notes that this fact means that any potential employer would have to accommodate the Veteran's limitations on the ability to sit, stand, walk, bend, or lift for any employment opportunity that was considered and/or offered. Ultimately, the preponderance of the evidence favors the Veteran's claim for a TDIU on and after January 13, 2009. Accordingly, this entitlement claim must be granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.