Citation Nr: 21008286 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-12 237 DATE: February 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective May 16, 2011, but no earlier. FINDING OF FACT The competent and probative evidence demonstrates that the Veteran's service-connected right leg disabilities and PTSD have rendered him unable to maintain a substantially gainful occupation since May 16, 2011. CONCLUSION OF LAW The criteria for entitlement to a TDIU, effective as of May 16, 2011, have been met. 38 U.S.C § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to December 1973 and from January 2003 to January 2004, to include service in the Republic of Vietnam. He was awarded the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 and September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board, inter alia, granted a TDIU rating effective from May 14, 2013. In doing so the Board also implicitly denied a TDIU rating prior to that date. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In August 2020, the Court issued an order that vacated the Board decision and remanded the claim for entitlement to a TDIU prior to May 14, 2013, exclusive of the period from July 2, 2012 to May 14, 2013, for compliance with a Joint Motion for Partial Remand (JMPR). (Note: a March 2019 rating decision implemented the Board’s grant of a TDIU rating and assigned an effective date of July 2, 2012, which was the date of the Veteran’s claim for an increased rating for posttraumatic stress disorder (PTSD)). 1. Entitlement to a TDIU prior to July 2, 2012 Relevant Procedural History and Factual Background On May 3, 2007, the Veteran submitted initial claims for service connection for PTSD and residuals of a gunshot wound to the right lower extremity (including the right leg, right venous ulcers, and right knee arthritis). In a December 2007 rating decision, the RO denied the claims of entitlement to service connection for a right leg fragment wound (new and material), right venous ulcers, a right knee condition, and PTSD. The Veteran submitted a Notice of Disagreement (NOD) with respect to all issues in January 2008. The Veteran was afforded a VA PTSD examination in June 2008. He reported that he had been shot in the right leg during active duty service. He reported that he had served in the National Guard until 2006; he stated that he left the National Guard because “I’m required to wear boots which make the (right leg) wound bleed.” He stated that he was currently employed as a stocker for a grocery store. He was diagnosed with PTSD and noted as having associated vocational dislocation (“A tendency toward anger resulting on occasion with premature termination of employment”). A September 2008 VA arteries/veins examination noted that the Veteran was currently working in a supermarket with no job restrictions. Objectively, he had well-healed scars of the lower right extremity; well-healed venous stasis ulcers; and no pain on range of motion or flare-ups. In a September 2008 rating decision, the RO granted service connection for PTSD and assigned a 10 percent rating effective from May 3, 2007 (i.e., the date upon which the claim for service connection was received). The RO subsequently issued a statement of the case (SOC) in September 2008 with respect to the issues of entitlement to service connection for right leg fragment wound, right venous ulcers, and a right knee condition. The Veteran submitted a substantive appeal in November 2008. The Board remanded these claims in January 2010, October 2011, and July 2012. The Veteran underwent a VA examination in June 2010. At that time, he reported that he was currently working at the front desk of a hotel. He stated that he had not missed any work in the last year due to his right leg. He stated that he was unable to stand more than 3 hours, walk more than 1 block, or to go up more than one flight of stairs due to right leg pain. He endorsed daily right leg pain and flareups, 5 to 6 times per day. Objectively, there were multiple scars (status post shrapnel wound), right leg varicose and spider veins, and a right leg infection. VA treatment records dated in 2010 and 2011 note ongoing treatment, including stitches, for multiple, non-healing right leg ulcers associated with the old bullet wound. In June 2012, the Veteran submitted an “Independent Medical Examination,” completed by Dr. B.M. Upon examination and review, Dr. B.M. noted that radiographs revealed bony irregularities of the tibia and fibula. He found evidence of chronic post-phlebitis syndrome with massive varicose veins. He noted marked deformity, pain on manipulation, and chronic stasis dermatitis formation with chronic ulcers. His gait was abnormal, and he had deforming scars of the right lower extremity with associated large varicose veins. In terms of PTSD, Dr. B.M. noted that the Veteran experienced “blackout spells,” violent thoughts, and problems with interpersonal relationships (e.g., he has been married six times). In June 2012, the Veteran testified that he was currently unemployed. In June 2012, the Veteran submitted a letter, dated in June 2006, from his commanding officer with the South Carolina Army National Guard. The letter indicated that the Veteran’s “medical condition will not allow him to wear his combat boots which means that he is unable to deploy to any field operations.” It was the officer’s recommendation that he be medically retired. On July 2, 2012, the Veteran submitted an increased rating claim for his PTSD. The Veteran was afforded a VA PTSD examination in August 2012. It was noted that the Veteran was not currently working and that he had had 4 to 5 jobs since the last examination in 2008. He reported that he had been demoted and terminated. The examiner noted that his “significant social limitations severely” impacted his occupations settings. In February 2013, the Board granted the Veteran’s claims for service connection for right knee arthritis, right leg varicose and venous stasis ulcers, and right leg scars. On May 14, 2013, the Veteran submitted his formal TDIU claim. See VA Form 21-8940 Veteran’s Application For Increased Compensation Based on Unemployability. He indicated that he was unable to obtain gainful employment on account of his service-connected PTSD and right leg disabilities. He reported that he last worked fulltime on May 16, 2011. He reported previous employment as cook at Waffle House in 2013; in sales at Olin Mills from November 1, 2012, to December 1, 2012; as a desk clerk at Best Western from February 1, 2009 to May 1, 2011 (40 hours/week, earning $1500.00 per month); and as a stocker at a grocery store from September 1, 2007 to January 1, 2009 (40 hours/week, $1900.00 per month). He reported that the most he ever earned was $25,000.00 in 2007 while working as security guard supervisor. He reported that he had a high school education. The Veteran underwent a VA PTSD examination in July 2013. The examiner stated that while the Veteran’s PTSD was moderate to marked, it did not prohibit gainful or sedentary employment. In a September 2013 “provisional” rating decision, the RO increased the Veteran’s rating for PTSD to 50 percent disabling, effective July 2, 2012. The rating decision also denied a TDIU. The Veteran disagreed with these determinations in an October 2013 NOD. The Veteran underwent a VA veins/artery and right knee/leg examination in March 2014; the examiner stated that the right leg varicosities and venous stasis impacted his ability to work to the extent that there was pain and swelling of leg with prolonged standing and walking and that the skin is friable and easily broken. The right knee osteoarthritis did not impact his ability to work. In a March 2014 rating decision, the RO effectuated the Board’s February 2013 decision and granted service connection for (2) arthritis, right knee, residuals of shell fragment wound, with an evaluation of 10 percent effective May 3, 2007; (2) venous ulcers, right lower extremity, with an evaluation of 10 percent effective May 3, 2007; (3) scars, residual of shell fragment wound, right leg, with an evaluation of 10 percent effective May 3, 2007. The Veteran subsequently submitted an NOD in August 2014, disagreeing with the initial evaluations assigned for the right knee arthritis, right lower extremity venous ulcers, and right leg scar disabilities. A September 2014 rating decision finalized the previous provisional rating decision of September 2013, by continuing to deny a TDIU rating and a rating in excess of 50 percent rating for PTSD. The Veteran submitted an NOD as to these determinations in September 2014. In a statement dated in February 2016, the Veteran reported that he has suffered from right leg venous disease with recurrent ulcerations for many years. He stated that he largely self-treated the ulcers from 2012 to 2015. He endorsed significant right knee pain, reduced motion, and swelling. He stated that his short temper and anxiety from the PTSD “would probably keep me from being employed.” However, he also noted that the pain in his right leg and knee prevent him from standing or walking for any significant period of time. In an April 2016 private opinion, Dr. E.A. opined that the Veteran was “totally unemployable and entitled to individual unemployability, since 2012” based on his overall service-connected mental and physical impairments. In so finding, Dr. E.A. noted that the Veteran had severe right lower extremity impairment that would limit his ability to stand, walk, and balance. Dr. E.A. noted that the Veteran additionally had severe PTSD with impaired judgment, disturbances of motivation/mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. During a December 2016 VA artery/veins examination, the Veteran reported that he had been unemployed since June 2016 when he quit his job due to his leg condition. He stated that he had not had any steady employment since 2012 due to his leg condition. The examiner stated that the Veteran could not perform any physical work activities that required periods of continuous weightbearing for more than one hour at a time; he also could not perform sedentary work activities that required him to continuously sit in one position with his right leg in a dependent stance. The examiner stated that the Veteran could sit for long periods, but only if he could elevate his right leg while sitting or get up and walk around for a few minutes each hour. The RO issued an SOC in February 2017 with respect to the issues of entitlement to a TDIU and entitlement to higher initial ratings for right leg venous ulcers and right leg scars, and higher rating for PTSD. The Veteran subsequently submitted a VA Form 9 in March 2017. In a June 2018 opinion, a Vocational Expert, J.A.B., stated, “It would be my opinion that it is at least as likely as not that May 2011 would be the effective date for TDIU due to PTSD and right lower extremity disabilities. The medical record indicates that as far back as 2008, while still employed, [the Veteran] was struggling with problems related to anger outbursts which had led to repeated terminations, demonstrating that the problems related to PTSD had been continuing for some time prior to his leaving employment for the last time in May 2011.” He went on to state, “In viewing this information in its totality, it would appear that [the Veteran] continued to work on an intermittent basis prior to his finally leaving employment for the last time in May of 2011. Although I think it could be argued that his inability to hold work could be dated earlier, to a date when he was still trying to work but periodically being terminated after a period of no more than a few months, it is my opinion that it is at least as likely as not that since having left work for the last time in May of 2011, this man has met the definitional requirements for an inability to successfully seek and hold gainful employment by virtue of his symptoms related to his PTSD and right lower extremity disabilities.” In March 2019, the Board granted an initial 40 percent rating for venous ulcers, right lower extremity(varicose veins); an initial 20 percent rating for scars, residual of shell fragment wound, right leg; a 70 percent rating for PTSD, beginning July 2, 2012; and a TDIU, beginning May 14, 2013. As previously noted, a March 2019 rating decision implemented the Board’s grant of a TDIU rating and assigned an effective date of July 2, 2012, which was the date of the Veteran’s claim for an increased rating for PTSD. Analysis The Veteran essentially contends that he should be awarded a TDIU effective from May 16, 2011, which is the date he reported that he was last employed on a fulltime basis. Alternatively, he asserts that the proper effective date should be May 3, 2007, which is the date VA received his initial claim for service connection for his right leg disabilities. Based on the procedural history outlined above, the appeal period under consideration for TDIU is from May 3, 2007, (the date that VA received the Veteran's claim to establish service connection for right leg disabilities) to July 2, 2012 (the effective date assigned for TDIU by the AOJ's March 2019 allowance). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. Substantially gainful employment does not include marginal employment, which is generally deemed to exist when a Veteran's earned annual 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 on a fact found basis, including but is not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). In this case, the Veteran's combined 60 percent disability rating from May 3, 2007, meets the schedular requirements for assignment of a TDIU based on the common etiology of his PTSD (rated as 10 percent disabling from May 3, 2007, to July 2, 2012), venous ulcers of the right lower extremity, status post shell fragment wound (rated as 40 percent disabling from May 3, 2007), scars of the right leg, status post shell fragment wound (rated as 20 percent disabling from May 3, 2007), and arthritis of the right knee, residuals of a shell fragment wound (rated as10 percent disabling from May 3, 2007) stemming from the Veteran's combat service (for which the service-connected disorders may be considered as one disability rated). See 38 C.F.R. § 4.16(a)(2). The schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are thus met for the period prior to July 2, 2012 (and from May 3, 2007). Accordingly, what remains to be determined is whether the functional impairment associated with his disabilities is of such nature and severity as to preclude substantially gainful employment for the period prior to July 2, 2012. Here, while medical and lay evidence dated from 2007 to 2010 unequivocally shows that the Veteran’s service connected right leg disabilities caused functional impairment (e.g., frequent flare-ups of pain and ulcers) and difficulties with certain activities (e.g., prolonged walking/standing and an inability to wear boots) and that his PTSD resulted in some “vocational dislocation,” the preponderance of the evidence does not suggest that such disabilities prevented him from obtaining or maintaining substantially gainful employment until May 16, 2011. Indeed, according to the Veteran’s own reported work history on his May 2013 VA Form 21-8940, he was employed on a full-time basis (i.e., 40 hours per week) as a desk clerk and as a stock clerk for the period from September 2007 to May 2011, earning at most, $25,000.00, in 2007. He reported that his right leg and PTSD disabilities affected his ability to work full-time as of May 16, 2011, and that this was the date upon which he was last employed in such a capacity. Based on this evidence, to specifically include the hours and earnings reported by the Veteran in his May 2013 TDIU application, there is no demonstration that his employment prior to May 16, 2011, should be considered marginal employment. See 38 C.F.R. § 4.16(a). Notably, the Veteran’s reported annual income for this period well exceeded the poverty thresholds and there is no indication in the record (or assertion by the Veteran) that his employment was in a protected environment. See also https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Accordingly, the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow substantially gainful employment prior to May 16, 2011. However, beginning May 16, 2011, a TDIU is warranted. As noted, the Veteran has reported that he was last employed on a fulltime basis on May 16, 2011. The June 2018 private vocational expert reviewed the Veteran’s entire medical and occupational history and likewise opined that May 2011 would be the effective date of the Veteran’s inability to seek and hold gainful employment due to service-connected PTSD and right leg disabilities. He further opined that the Veteran met the definitional requirements for an inability to successfully seek and hold gainful employment by virtue of his PTSD and right leg symptoms since May 2011. The Board finds this opinion to be highly probative as to the Veteran’s ability to secure and follow gainful employment as it is consistent with the medical and lay evidence of record. Indeed, the Veteran has consistently reported that his service connected PTSD and right leg disabilities have precluded gainful, steady employment since at least 2011/2012 (see, e.g., December 2016 VA examination report). As noted above, in his formal TDIU application, he detailed his past work history which included substantially gainful employment up until May 16, 2011. Dr. E.A. opined that the Veteran was “totally unemployable and entitled to individual unemployability, since 2012,” while the June 2018 vocational expert found that he had been unable to hold and seek gainful employment due to service connected disabilities since May 2011. Given the foregoing, and resolving any reasonable doubt in his favor, the Board finds that the Veteran is entitled to a TDIU effective from May 16, 2011, but no earlier. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.