Citation Nr: 21005685 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-41 475 DATE: February 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1976 to July 1995. In May 2019, he appeared and testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Board of Veterans’ Appeals (Board) considered the issue of TDIU to be raised by the record during that hearing. This claim returns to the Board following a September 2019 remand for further development. That development has been completed, and the September 2019 remand is incorporated herein by reference. Entitlement to a TDIU A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, but the percentage requirements of § 4.16(a) are not met, the matter may be referred to the Director, Compensation Service, for consideration of entitlement to the benefits on an extraschedular basis. 38 C.F.R. § 4.16(b). 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). VA’s duty to maximize benefits requires it to assess all of a claimant’s service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded a TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded as long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall be deemed to exist when a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts found basis when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. A determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual decision rather than a medical question. Therefore, VA is responsible for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the disability makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, 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). For the purposes of assigning effective dates, TDIU claims are treated as if they are increased rating claims. 38 C.F.R. § 3.400 (o). Here, the Veteran meets the schedular criteria for TDIU with a combined rating of 80 percent for the entirety of the appeal period. Currently, he is service-connected for status post right shoulder rotator cuff reconstruction, impingement syndrome, bicipital tendonitis, subacromial bursitis, degenerative arthritis with history of right shoulder strain (40%); recurrent enteritis (30%); radiculopathy of the left lower extremity (20%); radiculopathy of the right lower extremity (20%); degenerative joint disease of the thoracolumbar spine (10%); and right shoulder scarring associated with status post rotator cuff reconstruction (0%). In his application for a TDIU, the Veteran indicated that he had an education up to the 11th grade and had not worked since 2019, when he was employed part-time as a delivery driver for Domino’s Pizza. After a complete and thorough review of the claims folder, the Board finds that the Veteran’s employment was marginal, at best, in that he was so limited in his abilities due to his service-connected conditions that he was forced to reduce his responsibilities and his work hours before finally ending his employment. His previous employer confirmed that he had been given accommodations at work until he was unable to continue working. On a VA right shoulder examination in February 2014, the Veteran reported being unable to lift his shoulder and arm over his head or out to the side. Range of motion was measured to, at worst, 25 degrees of flexion. Further, the examiner noted that the Veteran had ankylosis in abduction up to 60 degrees (favorable). The examiner also found that the Veteran’s right shoulder impairment limits his physical activities of employment such as lifting, pushing, pulling, and carrying. On a VA intestinal disorder examination in February 2014, the Veteran was noted to have recurrent enteritis, causing mild upset stomach almost daily, with several severe attacks per year requiring hospitalization. The condition caused him to lose several permanent teeth. The examiner found that the Veteran’s recurrent enteritis impacted his ability to work because he misses or gets sent home from work due to flare ups. At the May 2019 Board hearing, the Veteran testified that his shoulder disability made it difficult for him to work because certain activities were timed. He also mentioned that his employer had already made excessive accommodations for him, to include allowing him to use his cane. On a VA peripheral nerve examination in December 2019, the examiner noted that the Veteran required the constant use of a cane due to his back pain and numbness in his lower extremities. The Veteran had moderate intermittent pain and numbness, as well as decreased sensation, in his lower legs, ankles, and feet, which was described in relevant part as mild incomplete paralysis. Contradictorily, however, the examiner later found that the Veteran’s peripheral nerve conditions did not impact his ability to work. In light of the peripheral neuropathy of the Veteran’s lower extremities, his need for a cane, his recurrent enteritis, and his service-connected right shoulder disability—taken in consideration of his previous employment and education level, the Board finds that the evidence supports a finding of entitlement to a TDIU. Specifically, the Veteran’s peripheral neuropathy and right shoulder disability not only make it impossible for him to work in a physically demanding job, his need for accommodations for his recurrent enteritis, along with his work experience and education level preclude him from obtaining and maintaining other, non-physical labor involved gainful employment. While no one condition precludes employment completely, his service connected disabilities taken as a whole prevent him from working. He meets the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16(a). Accordingly, based on the evidence of record, the Board finds that the overall evidence is persuasive that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. He is limited to the point that gainful employment is not possible. Entitlement to a TDIU is, thus, warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.