Citation Nr: 21007559 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-26 114 DATE: February 10, 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 April 1949 to November 1952 and from December 1952 to July 1969. This claim returns to the Board following a September 2020 Remand for further development. That development has been completed, and the September 2020 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. Thus, VA is responsible for the ultimate decision 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 at least 70 percent for the entirety of the appeal period. He has a current rating of 90 percent. Currently, he is service-connected for lumbosacral strain (10% from 2/1/2016 and 40% from 7/23/2019); esophageal hiatal hernia with narrowing of esophagogastric junction (30%); unspecified anxiety disorder (30%); osteoarthritis with calcified peri-tendinosis, left shoulder (20%); osteoarthritis with calcified peri-tendinosis, right shoulder (10% from 8/1/1969 and 20% from 5/21/2018); RES, thrombosis, old right temporal artery with resulting superior nasal field defect (10%); right lower radiculopathy (10% from 7/23/2019); left lower radiculopathy (10% from 7/23/2019); and dermatitis, eczematous (0%). In his March 2016 application for a TDIU, the Veteran indicated that he had attended some college, but had not worked regularly since his medical discharge from active service. In a 1979 statement, the Veteran reported that he last worked as a self-employed farmer, but was unable to work since he was discharged. Throughout the appeal period, the Veteran has been rated at 30 percent for his service-connected anxiety. A 30 percent rating is associated with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. See 38 C.F.R. § 4.130. On VA examination in May 2016, the Veteran was noted to have symptoms of anxiety and memory loss, such as forgetting names, directions, or recent events. On examination in October 2020, the examiner indicated that the Veteran’s symptoms included difficulty attending to, and easy distraction from, the task at hand—in addition to other mental health problems or symptoms, such as panic attacks, irritability, suspiciousness, etc. that interfere significantly with the ability to work. The examiner described issues involving an overlap of symptoms from the Veteran’s nonservice-connected diagnosed Alzheimer’s disease and found, based on anxiety alone, that the Veteran was capable of understanding and remembering detailed information, sustaining attention for concrete information over an 8 hour period, carrying out routine tasks on a consistent basis, making independent decisions, and interacting with others appropriately on a regular basis. The examiner noted that the Veteran’s mild dementia/mild neurocognitive disorder appears to impede his cognitive functioning. On VA examination in September 2019, the Veteran’s service-connected back disability was diagnosed as degenerative arthritis of the spine with intravertebral disc syndrome (IVDS) and radiculopathy. The examiner acknowledged the Veterans regular use of a cane or walker due in part to back pain. The report indicated that the Veteran experiences constant mild pain, mild paresthesias and/or dysesthesias and mild numbness with intermittent moderate pain caused by radiculopathy. In a medical opinion obtained in October 2020, the examiner found that, due to the Veteran’s service-connected lumbosacral strain, he would be restricted to non-physical, or sedentary work. Additionally, the Veteran’s shoulder conditions would limit his occupational activity to “light work” parameters with the added limitation of no lifting overhead. While the Veteran has not been granted housebound status, he was evaluated in June 2018 by Dr. T.L. The examination report indicated that the Veteran, due in part to his service-connected osteoarthritis and esophageal conditions, is unsteady standing and is on a steady physical decline. He also requires help with medication management. Dr. T.L. noted that the Veteran walks bent over with the use of a cane and does not leave the home on his own or drive. In light of the back condition, radiculopathy of the Veteran’s lower extremities, his need for a cane, his service-connected left and right shoulder disabilities, and his anxiety—taken in consideration with his previous employment and education level, the Board finds that the evidence supports a finding of entitlement to a TDIU. Specifically, the Veteran’s back and shoulder disabilities not only make it impossible for him to work in a physically demanding job, his need for accommodations for his anxiety, 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 (CONTINUED ON NEXT PAGE) 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.