Citation Nr: 21010968 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-23 361A DATE: February 26, 2021 ORDER Entitlement to a total rating due to service-connected disability (TDIU) is granted effective August 8, 2019. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran’s service-connected musculoskeletal and associated neurological disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met, up until August 8, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION On initial review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. See 06/06/2019 BVA Decision. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remand also included the issue of entitlement to service connection for a neck disorder, status post-operative x 2. While the case was on remand the AOJ granted the claim and assigned a staged rating. See 10/23/2020 Rating Decision – Narrative; see also Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes the current total evaluation of the Veteran’s service-connected bladder cancer, effective August 8, 2019. See 10/23/2020 Rating Decision – Codesheet. In this case occupational impairments due to the Veteran’s musculoskeletal and associated neurological disabilities are shown; however, in light of the concurrent awards of a total schedular rating and special monthly compensation, the issue of TDIU is moot from August 8, 2019 forward. Bradley v. Peake, 22 Vet. App. 280 (2008). Entitlement to a TDIU for the period prior to August 8, 2019 is granted. Applicable Legal Requirements Entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims (Court) promulgated a definition of substantially gainful employment as that term is used in 38 C.F.R. § 4.16(a). The Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one non-economic. 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. The Court specifically noted that while it looked to the standards and guidelines used by the Social Security Administration (SSA), it was not adopting or imposing those guidelines on VA. Ray, 31 Vet. App. at 72. Discussion Prior to August 8, 2019, service connection was in effect for a lumbar spine disability, the chronic orthopedic symptoms rated 40 percent disabling, and associated left lower extremity (LLE) radiculopathy rated 20 percent disabling; the cervical spine disability, rated mostly at 20 percent disabling, and associated RUE radiculopathy rated 20 percent disabling; left (minor) shoulder disability rated 20 percent disabling; and, surgical scar residual rated 10 percent disabling. The Veteran’s total combined rating has been 80 percent since the inception of the rating period on appeal, June 27, 2011. See 10/23/2020 Rating Decision – Codesheet. Hence, the Veteran is eligible for consideration under the Schedular Rating Criteria for more than one disability, at least one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). The Veteran’s formal application for a TDIU reflects that he has not worked since 2009, he is a college graduate, attended law school, and he also has attended commercial flight training. See 12/23/2011, 07/16/2012 VA Forms 21-8940. He was released from his last employment due to absences related to his disabilities. See 06/30/2009 Email Correspondence. The AOJ previously determined that the Veteran was permanently and totally disabled and granted a nonservice-connected pension (NSP), effective June 27. 2011. See 08/21/2013 Rating Decision – Narrative. The Board is aware that, unlike the criteria for a TDIU, nonservice-connected disabilities are also included in the determination of an NSP. Id. Codesheet. The Board notes, however, that the neck disability was among the then nonservice-connected disabilities. The medical examinations of record note that, in addition to lifting restrictions, the occupational impairment of the Veteran’s disabilities is that constant pain impacts his ability to concentrate, sit or stand for prolonged periods. See 12/30/2011 VA Examination, P. 7; 09/14/2012 VA Examination, P. 1-8; 02/26/2015 C&P Exam, 1st Entry, P. 7; 08/03/2017 C&P Exam, 3rd Entry, P. 17. At the Board hearing (11/13/2018 Hearing Transcript) the Veteran testified that he requires morphine to cope with his constant pain. In other written submissions he noted that the pain limited him to 30 minutes standing, sitting, or trying to use a computer. He asserted further he is fatigued due to sleep disruption from the pain. See 07/28/2015 VA Form 9. The Veteran’s wife submitted statement that described the impact of his pain and medications on his ability to concentrate. See 01/11/2012 Affidavit, 1st Entry. Both the Veteran and his wife are competent to describe the symptoms the Veteran has experienced due to his disabilities. See 3.159(a)(2). The Board notes the fact that the Veteran’s wife includes his nonservice-connected disabilities, but that factor goes only to the weight afforded her entire affidavit. Upon readjudicating the TDIU claim on remand, the AOJ continued to deny a TDIU on the basis that there was no medical opinion in the record that indicated that the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. See 10/23/2020 SSOC. Aside from the fact that an examination for that purpose was not arranged, the Board notes the Court’s and the Court of Appeals’ holdings that a medical opinion to determine the cumulative impact of multiple disabilities is not needed. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Johnson v. Shinseki, 26 Vet. App. 237 (2013) (en banc). Instead, rating authorities make the determination based on the medical evidence of record. The Veteran meets the economic component of the TDIU test, as he has not had earnings since 2009. Ray, 31 Vet. App. 58. While the evidence of record shows that the Veteran’s training, education, and prior work experience render him capable of performing in several career fields, the Board finds that the evidence is at least in equipoise that his service-connected disabilities have rendered him physically incapable of meeting the demands of full-time employment. Hence, the Board allows the claim. 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.16(a). Again, the TDIU award is moot as of August 8, 2019, for the reasons noted above. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.