Citation Nr: 21007038 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-18 411 DATE: February 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to January 30, 2019, is denied. FINDINGS OF FACT 1. Effective since July 30, 2013, the Veteran has service-connected disabilities with at least one rated 40 percent or more and a combined rating of 70 percent or more. 2. The Veteran has a rating of 100 percent for his mental health disability, effective January 30, 2019, which is a primary reason claimed for his unemployability. 3. For the relevant period on appeal, the Veteran was not unable to secure or maintain substantially gainful employment consistent with his educational and occupational history due solely to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to January 30, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 2006 to April 2010. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision that denied a TDIU. In July 2018 and August 2020, the Board remanded the issue of entitlement to a TDIU as inextricably intertwined with appeals for underlying service connection and disability rating claims, and then for additional consideration due to a higher rating for a period of the appeal. The issue of a TDIU is now ready for adjudication by the Board. 1. Entitlement to a TDIU prior to January 30, 2019 The Veteran reported in his TDIU claim that he last worked full-time in May 2013. He contends that he is unemployable primarily due to his service-connected mental health and low back disabilities. See, e.g., April 2014 TDIU claim (VA Form 21-8940), April 2015 and November 2020 arguments from attorney. In his initial claim, he also listed his knees as rendering him unemployable; however, service connection was denied for those conditions while the TDIU claim was pending. A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In determining unemployability, consideration should be given to prior education, training, and work experience, but not to age or any impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Pederson v. McDonald, 27 Vet. App. 276 (2015). Generally, a schedular percentage threshold must be met to be eligible for TDIU. If there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, 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. Therefore, if the schedular threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). If the Veteran is capable only of marginal employment, then he or she is incapable of securing or following a substantially gainful occupation. Cantrell v. Shulkin, 28 Vet. App. 382, 388 (2017). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court explained that “substantially gainful employment” has economic and noneconomic components. 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,” while the noneconomic component requires consideration of the ability to secure or follow that type of employment. For the non-economic component, attention must be given to the Veteran’s occupational history, education, skills, and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. When raised by the evidence, possible relevant factors for physical ability include limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Relevant factors for mental ability include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the Veteran meets the schedular threshold for a TDIU effective since July 30, 2013, based on multiple service-connected disabilities. His mental health disability of PTSD and major depressive disorder with psychotic features and insomnia is rated 50 percent effective since July 30, 2013, and 100 percent effective since January 30, 2019. His low back disability is rated 10 percent effective since May 1, 2010, and 40 percent effective since November 25, 2019. His right lower extremity sciatica and left lower extremity sciatica associated with the back disability are rated 10 percent each, effective since July 30, 2013. His right hand skin condition of dermatophytosis is rated 0 percent (noncompensable) effective since May 1, 2010. Accordingly, his combined rating was 10 percent prior to May 1, 2010; 70 percent effective since July 30, 2013; and 100 percent effective since January 30, 2019. There is no argument or suggestion of unemployability without considering the effects of the Veteran’s mental health disability. Therefore, the question of entitlement to a TDIU is moot as of January 30, 2019, the effective date of the 100 percent rating for the mental health disability. Cf. Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In November 2020, the Veteran’s attorney asserted that he should be found unemployable effective since July 30, 2013, noting that the 2014 and 2015 VA examinations indicated that his back disability precluded employment that required frequent heavy lifting. The attorney asserted that VA had not considered the work effects of the Veteran’s mental health disability and the combined effects of the service-connected disabilities, and further development should be completed in this regard. No specific development was requested, and no competent opinion has been provided to suggest unemployability based on the back and mental health. The Veteran and his attorney are not competent to provide an opinion in this regard, and their assertions are arguments that are considered with other evidence. The ultimate question of whether a Veteran is capable of substantially gainful employment is a factual one to be determined by the VA adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Although medical examiners may give a medical opinion on the ability to perform certain tasks, they are not experts on employment in general. Moore v. Nicholson, 21 Vet. App. 211, 219-20 (2007). Medical examiners are responsible for providing a full description of the effects of disability, while the VA adjudicator is responsible for interpreting reports in light of the whole recorded history and reconciling the various reports into a consistent picture to accurately assess the disability. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). VA is not required to provide a vocational assessment for a TDIU claim, and it is within VA’s discretion to determine whether a vocational assessment is required under the facts. Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011). In this case, the evidence is sufficient and does not show unemployability for a TDIU. Specifically, the Veteran’s job or occupational history is varied, and it is unclear when he last had substantially gainful employment after May 2013, as the evidence reflects several full-time positions with unspecified earnings from 2013 to 2016. In his April 2014 TDIU claim (VA Form 21-8940), the Veteran stated that he last worked full time in May 2013, and that he had worked as a garbage man from March 2011 to May 2013. He reported working for a temp service for unspecified dates, as a cashier from September 2010 to January 2011, and for a moving company from June 2010 to July 2010, shortly after his discharge from service. He stated that he had tried to obtain employment since he became too disabled in customer service at a pawn shop and as a corrections officer for penitentiaries. A July 2013 VA treatment record noted that he was working at a car dealership, and that he obtained this job through a temp service. An August 2013 record also noted that he had been working in a temp job the prior week. An October 2013 record noted that the Veteran was working the overnight at a grocery store, and a December 2013 record stated that he was no longer working. A January 2014 record noted that he was working with a temp agency but had no jobs recently. A January 2014 VA mental health examination and addendum noted that the Veteran reported that he had worked for the car dealership for a few months and his last job was for a couple months when he was an overnight stocker for a grocery store. An August 2014 VA treatment record noted that the Veteran worked at a gas station briefly. In October 2014, the Veteran reported being unable to find a job for over a year, and he was planning to relocate to another state for a job opportunity although it was minimum wage. A September 2015 record also noted that the Veteran would be moving out-of-state soon to be with the rest of his family. In March 2016, a VA treatment record noted that the Veteran had started a new job in the past two weeks and was working 12-hour days, and the job was going well so far. A September 2016 record noted that the Veteran had employment lined up, but a November 2016 record noted that he was not working currently. Consistent with the Veteran’s report in 2016, a June 2019 treatment record stated that the Veteran had last worked in 2016 at a warehouse and that he enjoyed the job. In November 2019, VA vocational rehabilitation records noted a job history with three periods of permanent full-time jobs. The Veteran identified work as a runner, driver, and forklift operator for the refuse or garbage company noted previously from April 2011 to April 2013. He also reported working as a driver at the indicated car dealership through the previously identified temp service from May 2013 to October 2014, although this appears to be a typographical error that should reflect October 2013, based on notations as to his employment dates in VA treatment records. Most recently, the Veteran reported working at the indicated warehouse as a leak tester for fiberglass tanks from November 2015 to June 2016. A December 2019 VA mental health examination noted a work history of construction and other odd jobs prior to service, paratrooper duties and being deployed to Haiti after an earthquake during service, and odd jobs after service. The Veteran’s DD Form 214 reflects that his primary duties during service from 2006 to 2010 were as infantryman, but he also received a parachutist badge. The remaining question is whether the Veteran had the mental and physical capacity to obtain and maintain substantially gainful employment consistent with his history prior to January 30, 2019, despite not actually doing so at times. As explained below, service-connected conditions did not make him unemployable. The Veteran’s educational and training history is a GED from high school, training for his duties in service, and some college but no degree. The Veteran took some courses in medical billing or coding in 2010 but dropped out the same year. See, e.g., April 2014 TDIU claim, November 2019 vocational rehabilitation record. Concerning physical capacity, the Veteran service-connected impairment is from his low back disability and associated sciatica or nerve impairment in the lower extremities. The service-connected right hand dermatophytosis is a skin condition, and there is no argument or indication that it has any impact on work activities. As summarized below, the Veteran’s low back and bilateral lower extremity sciatica result in pain and functional impairment at times. He described difficulty with heavy lifting, squatting, jumping, constant repetitive bending, and prolonged carrying or walking with heavy weight. The Veteran reported that he was able to work as a garbage collector despite these concerns, but he left a job as a grocery store stocker primarily due to back pain from constant repetitive bending. However, the Veteran has also had nonservice-connected elbow or arm problems since early 2013, which caused him to leave his long-term job as a garbage collector and a subsequent position at a car dealership. He also complained of problems doing physical work, including construction that he had done previously, due to impairments from the nonservice-connected knees, ankles, and shoulders. Therefore, the Veteran’s primary physical impairments were nonservice-connected. He retained significant physical capacity despite his low back and sciatica. During a February 2012 VA examination, the Veteran reported that he had knee pain when jumping off the garbage truck, but otherwise he tolerated that job. In February 2013, VA treatment records noted that the Veteran was having elbow pain from garbage work, and he stated that his job was not abiding by the guidelines of his doctor’s note, which was causing him to injure himself more. The provider noted that he may need to call an attorney about this. In May 2013, the Veteran reported having pain in the right elbow with certain motions for about three months, his worked had tried to help some with limited duties, but he was still riding on the back of the truck and emptying cans ,and he was starting to have trouble with his left arm too. In July 2013, the Veteran reported that he lost his job at the refuse company and was now working at a car dealership doing a repetitive motion-type job that did not help his right elbow. The provider recommended that he not do repetitive motion-type jobs with his right arm. During a September 2013 VA examination, the Veteran reported intermittent or rare radiation of sciatic pain from the back into the bilateral lower extremities, including recently when squatting at work. He stated that he carries one case at a time at work due to his back. The Veteran also stated that he was able to do his prior job at a garbage or refuse company despite his back pain and lower extremity sciatica complaints. He explained that he left that position due to his left arm, and he had a complaint pending for that. He also reported that he had knee pain when jumping off the garbage truck or with other impact activities. An October 2013 VA treatment record noted that the Veteran was working as a grocery store stocker, and he was going to look for a new job due to back pain. Similarly, a December 2013 VA treatment record noted that the Veteran further injured his arm in a job where management would not abide by his restrictions, and now he could not do physical work like in the past and was having problems getting work. The provider noted that he was unable to work due to problems with his knees, ankles, back, and arms. A January 2014 treatment record also noted that the Veteran was unable to do physical work anymore due to his arm and back, and he stated that he was unable to do construction anymore due to his shoulder, elbow, and back. A January 2014 VA mental health examination and addendum report reflect that the Veteran reported that he was no longer playing basketball or working out due to his knees and ankles. He stated that he had problems working at the car dealership for a few months due to problems with his arm or elbow. The Veteran also reported having an EEOC suit in process due to wrongful termination for not accommodating his medical issues, which appears to refer to his arm or elbow restrictions noted above. He reported being fired from the garbage company for “they don’t have a reason.” The Veteran also stated that he left his grocery store stocking position because his back was hurting too much, and also because he had issues with employees not working and laziness. He described problems with his back and reported that he felt more comfortable leaning forward and to the side. He also reported having pains in his knees nad ankles from time to time. During a July 2014 VA spine examination, the Veteran again reported that he left the grocery store stocking job due to back problems, but he stated that his back had been “holding up” at his prior position at the garbage company. He described work impact of difficulty with constant repetitive bending over while stocking shelves and prolonged carrying or walking with heavy weight, such as carrying his daughter for prolonged periods. The Veteran stated he was able to complete his duties in the garbage business he did not have to bend as much, but he injured his left elbow and had to leave to recover. He further stated that “with picking up a couch, there are others to help you,” suggesting that he could tolerate some lifting. A July 2015 VA spine examination noted a work impact of avoiding heavy lifting. Similarly, December 2019 VA examinations for the spine and peripheral neuropathy or sciatica noted work impacts of a hard time bending over or constant use of the back like squatting or jumping, and that the Veteran left previous his job as a stocker at a grocery store after three months due to back pain. Concerning mental capacity, as summarized below, the Veteran had some relationship difficulties and irritation with coworkers or employers, and some duties triggered traumatic memories from service at times. However, he generally reported that he was a hard worker, was appreciated by his supervisors, and even suggested improvements to procedures that were successfully adopted. The Veteran also reported having less PTSD symptoms or intrusive memories while working. He also acted as the primary caregiver for his young child at times and completed some college level schoolwork, which both require significant mental capacity. The Veteran’s mental health impairment is contemplated by his rating for that condition, and the evidence does not reflect that it resulted in unemployability alone or together with the effects of his service-connected physical impairments. A January 2013 VA treatment record noted that the Veteran was having problems wt work with coworkers and had deaths of friends recently. A December 2013 treatment record noted that when he was employed the Veteran worked hard and supervisors appreciated this. It really bothered him when people didn’t work and it made more work for him. At one job, he suggested a system for everyone in his area to get work done a couple hours earlier, and the supervisor agreed to try it and it worked out. The Veteran stated that he was no longer able to work in physical jobs since he injured his armor elbow, and that was a problem in getting work. He reported that he would like to get a “desk job.” He stated that he was previously taking classes to get a job in medical records and was doing well, but had to quit because his aunt wouldn’t let him live with her anymore. In other words, he had the mental capacity to complete college-level courses, which it is generally known requires concentration and other work-like mental skills. A January 2014 treatment record noted that the Veteran didn’t like “pops behind my back,” and at the recycling center where he worked “they got a kick out of making pops behind my back.” This appears to be the garbage business where he worked through 2013. However, he had worked in that position since 2011, nad as noted above, he reported leaving that position to recover from an elbow or arm injury and that the employer did not fully abide by his medical restrictions for that. Another January 2014 treatment record noted that the Veteran had been applying for work online, but he would rather meet in person. This is more consistent with him being comfortable with people than having mental impairment in that regard. A March 2014 treatment record noted that the Veteran was able to avoid intrusive thoughts in the past when he was working. Similarly, in an April 2014 record, a VA provider discussed that the Veteran did not have PTSD symptoms during his VA examination because he was focusing on work and avoiding thinking of traumatic experiences, but his symptoms had surfaced since he was not able to work. Several other March 2014 treatment records noted the Veteran’s report that he had lost prior jobs and was unable to get another job due to physical issues. He also stated that he had been offered a job at a pawn shop, but he was afraid of working with people all the time. He reported increasing anger related to others he sees as lazy in the workplace. In April 2014, the Veteran reported that he talked with people at the pawn shop when he went there to pawn things, and they wanted him to work there. He told them that they wouldn’t necessarily like him if he worked there because when he is working he “wants to get work done.” The Veteran also reported an interest in being an accountant or insurance actuary because he loves math. These reports are consistent with the Veteran being a hard worker and having some potential relationship difficulties, but not being unable to find gainful work. An August 2014 VA treatment record noted that the Veteran had worked briefly at a gas station, but it was not a good fit for him because some of his tasks like discarding food triggered traumatic memories of his time in Haiti during service. An October 2014 treatment record noted that the Veteran was a stay-at-home dad. Similarly, a September 2015 VA treatment record noted that he was the primary caretaker for his 3.5-year-old daughter and they spent all their time together. He had tried unsuccessfully for an extended period to find employment and planned to move to another state to find a job. He again reported that he did not like to apply for positions online, and providers encouraged him to do so and provided resources for employment. As noted above, the Veteran subsequently worked at a warehouse for approximately seven months beginning in November 2015 until he moved away in 2016, and he stated that he liked that position. It is generally well known that caring for a young child requires a significant amount of responsibility or mental capacity. Additionally, as noted above, the Veteran reported being able to carry his child but having back pain after carrying her for prolonged periods. This is consistent with him having significant physical capacity as related to his back and associated sciatica. This evidence shows that although the Veteran had difficulty finding employment, he was not mentally or physically unable to do so. A December 2019 VA mental health examination noted that the Veteran had odd jobs here and there after service. His mother accompanied him to the examination, and she reported that he left his last job about six years ago (or in approximately 2013) because he couldn’t work with people or come outside. However, this report is inconsistent with the contemporaneous evidence as summarized above, where the Veteran reported either being fired or leaving the garbage company in 2013 due to his arm or elbow problems, and that he liked his coworkers but not his boss and wanted better pay. The evidence also reflects several full-time positions for several months after that job, including in 2016, that he left due to his arm or elbow, for a better job, or because he moved away. This evidence is more probative because it was specifically from the Veteran himself and was more contemporaneous to the time when the Veteran was actually working or left prior positions. Therefore, although the Veteran’s mother is competent to report her recollection as to the timing and reasons for him leaving a prior job, she is not credible in this regard. Her contrary assertions are outweighed by the more probative evidence above. The Veteran has also reported leaving or turning down positions or having difficulty finding employment due to reasons other than physical or mental impairment. A December 2013 VA treatment record noted that in the past the Veteran was offered a forklift job, but he wanted to try something different. A January 2014 VA treatment record noted that the Veteran did not have a job due in part to the job market. A January 2014 VA examination addendum noted that the Veteran liked the hours and people at the garbage business, but the pay and boss weren’t good. Similarly, he had reported in May 2011 while working for that company that he wanted to find a new job because it didn’t pay well. Consistent with these reports, when reporting his job history for VA vocational rehabilitation in November 2019, the Veteran stated that he left the garbage business and car dealership for a better job, and he left the warehouse position in 2016 because he moved away. All of these jobs were listed as permanent full-time positions. As noted above, the Veteran’s claim for a TDIU is moot since January 30, 2019. However, these reports as to his job history are relevant for the prior period. In summary, although the Veteran meets the TDIU schedular percentage threshold, his service-connected disabilities did not render him unable to obtain or maintain substantially gainful employment consistent with his educational and occupational history prior to January 30, 2019. Considering all of the lay, medical, and vocational evidence, although the Veteran’s service-connected physical and mental symptoms varied in frequency and severity and resulted in occupational difficulties at times, they did not result in unemployability. Instead, his high combined rating accounts for his impairment. The preponderance of the evidence is against a TDIU, there is no reasonable doubt to resolve in his favor, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.