Citation Nr: 21009236 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-07 739 DATE: February 22, 2021 ORDER As of September 15, 2011, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a TDIU prior to September 15, 2011, is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of September 15, 2011. CONCLUSION OF LAW As of September 15, 2011, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to September 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2011 by a Department of Veterans Affairs (VA) Regional Office. In November 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2016, February 2019, and February 2020, the Board remanded the claim on appeal for additional development and it now returns for further appellate review. In October 2020, the Veteran was sent a letter indicating that he had elected an in-person hearing with a Veterans Law Judge and, in light of COVID 19, was encouraged to opt into a virtual hearing; however, such letter was sent in error as his Board hearing was previously held in November 2015 and he has not subsequently requested a second hearing. Quinn v. Wilkie, 31 Vet. App. 284 (2019). 1. Entitlement to a TDIU as of September 15, 2011. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration (SSA) regulations). Marginal employment generally shall be 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. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017), the United States Court of Appeals for Veterans Claims (Court) indicated that factors to consider may include the “magnitude of the veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Thus, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The Court also defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. For the entire appeal period stemming from March 15, 2011, the date of receipt of the Veteran’s increased rating claims upon which his TDIU claim is predicated, he is service-connected for bilateral feet degenerative joint disease, pes planus, and retrocalcaneal heel spurs, evaluated at 10 percent prior to August 3, 2012, 30 percent disabling from August 3, 2012, to December 20, 2016, and 50 percent disabling thereafter; sural/peroneal neuropathy of the right foot, evaluated as 20 percent disabling prior to August 3, 2012, 30 percent disabling from August 3, 2012, to April 14, 2016, and 40 percent disabling thereafter; tender scar of the right foot, evaluated as 10 percent disabling. As of September 2011, the Veteran is also service-connected for left knee degenerative joint disease, evaluated as 10 percent disabling; right knee degenerative joint disease, evaluated as 10 percent disabling; left knee lateral instability, evaluated as 20 percent disabling prior to November 13, 2019, and noncompensably disabling thereafter; and right knee lateral instability, evaluated as 20 percent disabling prior to November 13, 2019, and noncompensably disabling thereafter. As all of the Veteran’s service-connected disabilities stem from a common etiology, i.e., his bilateral foot disability, they are considered as one for TDIU purposes. Consequently, his combined disability rating is 40 percent prior to September 15, 2011, 70 percent as of September 15, 2011, 80 percent as of August 3, 2012, and 90 percent as of April 14, 2016. Therefore, he meets the schedular criteria for a TDIU as of September 15, 2011. Thus, prior to such date, he does not and, thus, as will be discussed below, a TDIU is only available on an extra-schedular basis. In regard to the Veteran’s education and work history, in a May 1996 VA consultation report, it was noted that he was currently unemployed and had not worked since 1994. At an April 1997 hearing, the Veteran testified that the last time he was employed was in 1993 in construction and SSA found him to be disabled as of February 1994. In February 1997, November 2002, and June 2003 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he previously worked in construction, as a tow truck driver, and as a wrecker driver, and became too disabled to work in 1993, completed one year of high school, and did not complete any additional education or training. Vocational Rehabilitation and Employment records from May 2008 indicate that the Veteran has limited work experience, no additional training, and significant barriers to competitive unemployment. At the December 2015 hearing, the Veteran testified that he last worked full-time as a tow truck driver and stopped working due to his disabilities in the mid-nineties. In his November 2016 VA Form 21-8940, the Veteran reported that he became too disabled to work as of December 31, 1999, the date he last worked full-time as a tow truck driver. Additionally, he reported that he completed two years of high school, did not obtain a GED, and completed 6 months from the North American Training Academy. A vocational assessment completed in October 2020 indicates that the Veteran completed high school and attended the North American Training Academy for six months. It was further observed that he last worked in a substantially gainful capacity as a tow truck driver in 1999 and, while he again worked as a tow truck driver from February 2018 to May 2018, such was only marginal in nature as he only worked for a few months and did not earn more than marginal earnings. Thus, in regard to the Veteran’s education and work history, the Board finds that he completed 1 to 4 years of high school, a six month training program at the North American Training Academy, and last worked in a substantially gainful capacity in the 1990’s. In this regard, the Board agrees with the October 2020 vocational assessment that his employment from February 2018 to May 2018 was marginal in nature. Furthermore, the nature of his work experience is primarily in construction and as a tow truck driver. As pertinent to the functional impairment resulting from the Veteran’s service-connected disabilities, at a May 2011 VA examination, it was reported that his service-connected bilateral pes planus and neuropathy of the right foot impacted his ability to work in that it resulted in difficulty with prolonged standing or walking. In a December 2011 statement, the Veteran reported his right foot neuropathy resulted in foot drop and the need to wear a brace to support his foot. In an August 2012 VA examination, the examiner noted that the Veteran’s bilateral knee disabilities impacted his ability to work in that such limited prolonged standing and ambulation, and he was unable to kneel, bend, or perform repetitive squatting. In regard to the Veteran’s bilateral pes planus, he noted that such disability impacted his ability to work in that it limits prolonged standing without appropriate foot gear. The examiner also reported that the Veteran had mild foot drop due to his right foot neuropathy, which resulted in a limited ability to walk or stand for prolonged periods of time, lift, or carry. At the December 2015 Board hearing, the Veteran testified that he was unable to work as a tow truck driver because his feet would give out and he could not push the petal with his right foot. Despite wearing a brace to support his ankle, the Veteran indicated that he experienced numbness and a lack of ability to control his feet. He also stated that, even if he were to work a sedentary job, he still has pain and needs to spend 3 to 4 hours every day elevating his legs. Finally, the Veteran testified that he believes his right foot neuropathy and bilateral foot disorder would prohibit him from returning to work as a truck driver. In an April 2016 VA examination, the examiner provided that the Veteran’s neuropathy significantly limits his ability to ambulate, and therefore ,impacts his ability to work. In regard to his bilateral foot disability, he found that prolonged standing, walking, driving, and high impact weight bearing activity impacts his ability to work. The Veteran also reported that he is unable to drive trucks any longer due to his foot disabilities. The April 2016 VA examiner opined that, overall, the Veteran’s ability to function in an occupational environment is significantly limited by his service-connected disabilities. Specifically, his ability to stand and walk for prolonged periods is significantly limited by his conditions, most notably his right lower extremity neuropathy and associated foot drop. The examiner also noted that, give his foot weakness, the Veteran’s ability to drive or operate machinery is significantly affected. However, he found that sedentary forms of employment, such as those that do not require the Veteran to stand or walk for prolonged periods or repetitively, would be less affected by his service-connected disabilities. Further, a December 2016 VA examiner reported that the Veteran is not able to engage in employment that requires prolonged standing, walking, and lifting due to his bilateral foot disabilities. In October 2019, a VA examiner also opined that the Veteran’s bilateral foot disabilities and right foot neuropathy impacts his ability to work as such severely limit his ability to stand, ambulate, bear-weight, and perform activities of daily living without any assistance and/or supporting device. Additionally, at a November 2019 VA examination, it was noted that the Veteran’s bilateral knee disabilities limit his ability to work such that he is unable to stand for longer than 5 minutes or without a cane. At the examination, the Veteran also reported that he had pain and swelling in both knees when he walks and experiences flare-ups at any time, either when walking or sitting. Additionally, in an October 2020 vocational assessment from K.M., who holds a master’s degree in rehabilitative counseling, opined that, after a comprehensive review of the Veteran’s records and an interview with him, the Veteran more likely than not is unable to secure and follow substantially gainful employment, including sedentary unskilled work, since at least September 2011 due to his service-connected disabilities. In support of such opinion, she relied upon the April 2016, December 2016, and October 2019 VA examiners’ assessment of the nature and severity of the Veteran’s service-connected disabilities, to include their resulting functional impairment, with the exception of the April 2016 VA examiner’s conclusion that the Veteran was not precluded from performing sedentary forms of employment. In this regard, K.M. found that sedentary employment still required a certain degree of standing and walking, which would be precluded as a result of the Veteran’s service-connected bilateral foot disabilities. Specifically, she concluded that he was unable to meet the full range of physical requirements at the sedentary exertional level. K.M. further found that the Veteran’s service-connected disabilities precluded him from sustaining adequate pace and productivity, which is required in all competitive employment. In this regard, he would be required to alternate positions regularly, i.e., every 5 to 10 minutes, and had difficulty maintaining focus and concentration due to the pain from his service-connected disabilities. She also determined that the Veteran’s incoordination and instability resulting from his service-connected disabilities rendered him a fall risk, which is not tolerated by employers for safety reasons. Based on the foregoing, the Board finds that, as of September 15, 2011, the date the Veteran meets the schedular threshold for a TDIU, his bilateral foot and knee disabilities with associated right foot neuropathy renders him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, the record reflects that the Veteran has, at most, a high school education and a work history involving construction and tow truck driving, and his service-connected disabilities render him unable to stand, walk, sit, drive, or lift heavy objects for prolonged periods of times. Furthermore, while the April 2016 VA examiner found that the Veteran’s disabilities would not interfere with sedentary employment, he does not have the educational or employment background that would allow him to work in such capacity. Furthermore, as noted by K.M., even such type of employment would still require some level of standing and walking. Moreover, due to such disabilities, his pace, productivity, focus, and concentration were also adversely affected. Consequently, the Board resolves all doubt in the Veteran’s favor and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of September 15, 2011. Thus, a TDIU as of such date is warranted. REASONS FOR REMAND 2. Entitlement to a TDIU prior to September 15, 2011. As the evidence suggests that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and work history due to his service-connected bilateral foot disability and associated right foot neuropathy prior to September 15, 2011, the case should be referred to the Directory of Compensation Service for consideration of whether a TDIU is warranted on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the case to the Director of Compensation Service for extra-schedular consideration of a TDIU prior to September 15, 2011, pursuant to 38 C.F.R. § 4.16(b). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.