Citation Nr: 21008935 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-10 722 DATE: February 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities reasonably preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1987 until his honorable discharge in July 1990, and again from April 2007 until his honorable discharge in March 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the San Diego, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to TDIU. In January 2019, the Veteran and his then-girlfriend testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In an April 2019 decision, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain outstanding medical records and social security administration records. In addition, the Board directed the RO to obtain a VA examination as to the functional impact of the Veteran’s service-connected disabilities as to employment. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a total disability rating based on individual unemployability Evidentiary Standards The personalized nature of TDIU determinations is evident from the title of 38 C.F.R. § 4.16: “Total disability ratings for compensation based on unemployability of the individual.” (Emphasis added). In deciding TDIU claims, it is the Board’s responsibility to evaluate the entire record on appeal, 38 U.S.C. § 7104(a), giving due consideration to all pertinent medical and lay evidence. See Todd v. McDonald, 27 Vet. App. 79, 85‒86 (2014); 38 C.F.R. §§ 4.1, 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. TDIU A request for TDIU is not a separate claim for benefits but rather “is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule.” Norris v. West, 12 Vet. App. 413, 420‒21 (1999). According to 38 C.F.R. § 4.16(a), a veteran who does not qualify for a schedular 100 percent disability rating may be entitled to TDIU if the veteran is unable to secure or follow substantially gainful employment by reason of his or her service-connected disabilities and the Veteran has either: 1) One service-connected disability rated at 60 percent or more; or 2) Two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. See also 38 C.F.R. § 4.25 (combined ratings table). As to one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, are considered “one disability.” 38 C.F.R. § 4.16(a). “Substantially gainful employment” includes an economic component; that is, a veteran’s ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 38 Vet. App. 58, 72 (2019); 38 C.F.R. § 4.16(a). It also includes a non-economic component; that is, whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 38 Vet. App. at 73. For VA purposes, the term “unemployability” is synonymous with inability to secure or follow a substantially gainful occupation. VAOPGPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. When determining whether a veteran is able to secure or follow substantially gainful employment, the Board, as appropriate, should consider: 1. The veteran’s history, education, skill, and training; 2. Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3. Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 38 Vet. App. at 73 (citations omitted). The Board is precluded from considering the Veteran’s age, previous unemployability status, and impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286. The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Analysis Schedular criteria As of July 31, 2014, the date on which the Veteran filed his claim for TDIU, he was service connected for the following disabilities (and associated ratings): 1) Lumbar spine degenerative disc disease and spondylosis (40%) 2) Left ankle degenerative joint disease (10%) 3) Tinnitus (10%) 4) Tender scar, right femur (10%) 5) Tender scar, left lower quadrant (10%) 6) Inter-trochanteric fracture, right hip (10%) 7) Radiculopathy involving sciatic nerve, left (10%) 8) Right knee strain (0%) 9) Limitation of extension, right hip (0%) The combined evaluation of the Veteran’s service-connected disabilities as of July 31, 2014, is 70 percent. See 38 C.F.R. §§ 4.25 (combined ratings table), 4.26 (bilateral factor). He has one service-connected disability, lumbar spine degenerative disc disease and spondylosis, rated at 40 percent. He has a total of nine service-connected disabilities. Therefore, the schedular criteria for TDIU are satisfied. 38 C.F.R. § 4.16(a). Ability to secure or follow substantially gainful employment The Veteran reported that he obtained his high school diploma. He did not obtain any further education, collegiate or otherwise. Following completion of high school and prior to joining the military, the Veteran was employed in various general labor positions, including construction. See DD Form 398-2, Department of Defense Personnel Security Questionnaire. According to the Veteran’s DD-214 (associated with his service from 1987 to 1990), his military occupational specialty (MOS) was as a “medical specialist” for which he received ten weeks of associated military education. According to his DD-214 (associated with his service from 2007 to 2008), his MOS was not listed, but he received military education related to the MOS of signal support system specialist. Following his first honorable discharge from active service in 1990, the Veteran’s Social Security Administration (SSA) records indicate that he reported working from 1999 to 2005 as an account coordinator for a major United States company. His duties included frequently lifting 50 pounds or more, running a high-speed digital press, completing inventory, and overseeing three repair people. In addition, within his VA Form 21-8940, application for increased compensation based on unemployability, he reported that in 2005 he earned approximately $30,000.00 for the year, which was the highest he had ever earned in one year. The record is silent as to what the Veteran did for income between 2005 and his return to active military service in 2007. Following his second honorable discharge from active service in 2008, the Veteran reported that he worked as a slotting coordinator (operations) for a major food company from 2008 to 2009, earning $2960.00 per month. See VA Form 21-8940, Application for Increased Compensation based on Unemployability. In his position, the Veteran worked in a warehouse, used forklifts and computers, and frequently lifted 50 pounds or more. See SSA records. He estimated that his day consisted of two hours walking, five hours standing, two to three hours sitting, half-an-hour to hour climbing, and one to two hours stooping. The food company submitted VA Form 21-4192 confirming his dates of employment. The food company reported the Veteran earned $18.50 per hour, worked 8-hour days, and worked 40 hours per week. The Veteran then reported he worked as a press operator for a printing company from 2010 until 2011, earning $1840.00 per month. See VA Form 21-8940, Application for Increased Compensation based on Unemployability. The Veteran testified that this was his last employment because he had an “inability to even make it through a schedule.” January 2019 Board Hearing Transcript, at 5‒6. According to his SSA records, the Veteran’s duties included running a high-speed color digital press and completing printing jobs for customers. His job required him to stand for most of the day, and to lift and carry boxes of paper weighing 50 to 75 pounds. The printing company submitted VA Form 21-4192 confirming the Veteran’s employment. The company documented the Veteran earned $20,572.20 during the twelve months preceding his last date of employment. He worked 32 hours per week. In addition, the company reported the Veteran was “released due to gross misconduct,” but no explanation was provided. In March 2013, in connection with a claim for VA benefits, the Veteran was afforded VA examinations as to his back, ankles, hips, and knees. The VA examiner documented limited range of motion and pain. The examiner opined that the Veteran’s back disability impacted his ability to work by limiting his walking and preventing him from bending or lifting. The VA examiner also opined that the Veteran’s hip disability impacted his ability to work by limiting his ambulation. The VA examiner opined that the Veteran’s ankle and knee disabilities did not impact his ability to work. In September 2014, in connection with his application for TDIU, the Veteran was afforded a new VA examination. The VA examiner documented various limited ranges of motion, pain, and functional loss on repetitive use. The examiner opined that the Veteran’s back disability continued to impact his ability to work by limiting any heavy labor. In October 2014, the Veteran submitted a medical opinion from his treating VA physician, Dr. M.L. She had been treating the Veteran since 2007. She opined that the Veteran’s degenerative arthritis of the spine was progressively worsening. At that time, his symptoms included back pain, radiating pain down his left leg, occasional left leg numbness, right leg pain, difficulty walking for extended periods of time, and difficulty sitting for more than 30 minutes. She opined that the Veteran’s pain and other symptoms frequently interfered with his attention and concentration to perform simple work tasks. She reasoned the Veteran was unable to sit or stand for more than 30 minutes at one time, could not walk a block, would need to take unscheduled breaks in an 8-hour work day, had limited ability to lift and carry objects weighing 10 pounds or more, and he had significant limitations with reaching overhead. She estimated that due to his disabilities, the Veteran would likely miss about four days per month of work. She concluded that the Veteran’s “constellation of symptoms and physical restrictions” substantially limited his ability to find appropriate work.” In December 2014, the Veteran sought disability benefits through the SSA based on his “chronic pain, multi-level degenerative disc disease lumbar, osteoarthritis of the hips, and HIV.” See SSA records, Allegations of Impairments. An SSA administrative law judge issued a decision in January 2016 finding the Veteran was disabled under the Social Security Act, 20 C.F.R. § 404.1520. While the SSA’s grant of disability benefits is not controlling nor dispositive, the award of SSA disability benefits, based primarily on a service-connected disability, is still probative evidence of unemployability. In 2018, the SSA obtained a medical opinion as to the Veteran’s disability status. The SSA examiner conducted a psychiatric examination and opined the Veteran had mild limitations related to his ability to interact with others, respond to change and work pressures, and his general daily activities. The SSA examiner also conducted an evaluation of the Veteran’s back disability. The SSA examiner opined that the Veteran was capable to lifting and carrying 20 pounds occasionally and 10 pounds frequently, and he could stand, walk, and sit six hours out of an 8-hour workday. The SSA examiner found the Veteran could frequently bend, crouch, kneel, crawl, stoop, climb, balance, walk on uneven terrain, and work at heights. Finally, the SSA examiner found the Veteran had no overhead reach restrictions. Based on that medical opinion, the SSA ceased the Veteran’s disability due to medical improvement under 20 C.F.R. § 404.1594 and concluded the Veteran was able to perform less demanding work. In February 2020, consistent with the Board’s April 2019 remand directives, the Veteran was afforded VA examinations as to his back, hips, knees, and ankles. The VA examiner opined that the Veteran’s back disability continued to impact his ability to work. The VA examiner reasoned that the veteran would not be able to perform a job that required prolonged sitting, standing, walking, repetitive bending or lifting as a result of his chronic back pain and limited range of motion. The examiner opined that Veteran would be better suited for a part-time sedentary job with flexibility to change position and move around. As to his hip disability, the VA examiner opined it too limited his ability to work. The examiner reasoned the Veteran would not be able to perform a job that required prolonged standing, walking, climbing, squatting, heavy lifting, or other similar physical activities. The VA examiner also opined that the Veteran’s back disability was more functionally limiting than his hip disability. As to the Veteran’s ankle and knee disabilities, the VA examiner opined that these disabilities limited the Veteran’s ability to work. The VA examiner reasoned the ankle and knee disabilities would limit running, jumping and other strenuous physical activities. The examiner also stated the Veteran’s back and hip disabilities were more far more functionally limiting than his ankle and knee disabilities. As to the medical evidence of record, the Board finds no reason to doubt any of the medical professionals’ competency or credibility. The Board also finds each medical professional’s respective opinion probative of whether the Veteran’s service-connected disabilities affect his ability to work. The Board also finds the lay evidence of record, to include the Veteran’s statements and testimony and the former employers’ statements, credible and probative on the issue of TDIU. The Board recognizes that the March 2018 SSA medical examiner’s findings, that the Veteran had no issues with standing, walking, sitting, and the like, are in contrast with those of the February 2020 VA medical examiner who found the Veteran did have such limitations due to his service-connected disabilities. The Board notes there is a two-year gap between those examinations, thus it is reasonable to conclude the Veteran’s experienced less symptoms associated with his disabilities at that time. Nonetheless, the Board finds the Veteran’s VA medical records, which continuously documented his service-connected disabilities and associated symptoms, as well as the Veteran’s consistent statements about pain and other symptoms indicate that in 2018 he continued to have limitations most consistent with those described by the February 2020 VA medical examiner. As to the economic factor, the Board observes the evidence indicates the Veteran never earned more than $30,000.00 in yearly income while working full-time, generally assumed to be 8-hour days, 40 hours per week. He last worked in 2011 and earned $20,572.20 during the twelve months preceding his last date of employment. In 2011, the federal poverty level for the 48 contiguous United States was $11,484.00. See United States Census Bureau, Poverty Thresholds, 2011, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited February 3, 2021). While the Veteran’s full-time income was more than the federal poverty level in 2011, the February 2020 VA examiner opined that the Veteran is most suited for part-time work due to his service-connected disabilities. Assuming that the Veteran would be able to earn a comparable income-to-poverty level ratio in 2021 as he did in 2011, if he only worked part-time, this would likely place his income near the poverty level threshold. The poverty threshold for one person, under the age of 65 in 2020 was $13,456.00, the most recently revised threshold. See United States Census Bureau, Poverty Thresholds, 2020, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited February 5, 2021). As to the non-economic factor, the Board finds the evidence indicates that the Veteran would not be able to secure or follow substantially gainful employment. The limitations on physical labor, including but not limited to standing, walking, bending, and lifting, the restriction to part-time sedentary employment (but with limitations on computer use and telephone work-due to tinnitus), the necessary accommodations described by the examiner, and the Veteran’s education and occupational experience reflect a disability picture consistent with no more than marginal employment. 38 C.F.R. § 4.16(a). In summary, the evidence in the record reflects that due to his service-connected disabilities the Veteran is unable to secure and follow substantially gainful employment beyond marginal employment. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that a TDIU rating is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, Associate 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.