Citation Nr: 21010984 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-60 760 DATE: February 26, 2021 ORDER From January 15, 2014, to July 11, 2019, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a TDIU prior to January 15, 2014 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 from January 15, 2014, to July 11, 2019. CONCLUSION OF LAW From January 15, 2014, to July 11, 2019, 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 1975 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office. In July 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2020, the Board awarded an increased rating of 20 percent for post-operative residuals of fractured left tibia and fibula with left ankle strain and degenerative changes for the entire appeal period. However, the Agency of Original Jurisdiction (AOJ) has not yet promulgated such award. Therefore, the matter is referred for appropriate action. Also, at such time, the Board remanded the claim for a TDIU prior to July 11, 2019, in order to ensure compliance with due process and it now returns for further appellate review. 1. Entitlement to a TDIU prior to July 11, 2019. The Veteran contends that his service-connected disabilities, to include other specified depressive disorder with somatic symptom disorder and alcohol use disorder, residuals of fractured left tibia and fibula with left ankle strain and degenerative changes and associated surgical scars, left knee strain with meniscal tear and osteoarthritis, and degenerative joint and disc disease of the lumbosacral spine with associated radiculopathy of the left lower extremity, render him unable to secure or maintain gainful employment consistent with his prior employment as an electrician. Thus, he claims that a TDIU is warranted. 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). 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 United States Court of Appeals for Veterans Claims (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. As noted in the April 2020 decision, the instant appeal period stems from September 5, 2013, which is the date service connection was awarded for the Veteran’s scars of the left lower extremities, and he has already been awarded a TDIU as of July 11, 2019. Therefore, the issue before the Board is entitlement to a TDIU from September 5, 2013, to July 11, 2019. For the entire appeal period, he is service-connected for other specified depressive disorder with somatic symptom disorder and alcohol use disorder, left knee strain with meniscal tear and osteoarthritis as of November 24, 2014, degenerative joint and disc disease of the lumbosacral spine with associated radiculopathy of the left lower extremity as of August 16, 2018, residuals of fractured left tibia and fibula with left ankle strain and degenerative changes and associated surgical scars, and partial edentulism of the mandible and full edentulism of the maxilla as of August 16, 2018. In consideration of the increased rating awarded in the April 2020 Board decision, but not yet implemented by the AOJ, the Veteran’s combined disability rating for the appeal period is 60 percent, effective September 5, 2013; 70 percent, effective January 15, 2014; and 80 percent as of November 8, 2018. Therefore, he meets the schedular threshold for a TDIU as of January 15, 2014. 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 his July 2019 Veteran’s Application for Increased Compensation based on Unemployability (VA Form 21-8940), the Veteran reported that he last worked full time as an electrician in January 2009. In regard to his education, he indicated that he completed high school and apprenticeships as an auto mechanic and electrician. Prior VA Forms 21-8940 received in January 2011 and October 2012 similarly reflect an employment history as an electrician dating back to at least October 2003 A review of VA treatment records indicates that, prior to working as an electrician, the Veteran worked as a driver, courier, and mechanic and performed manual labor in a warehouse. Therefore, the Board finds that the Veteran has a high school education, special training as an auto mechanic and electrician, and has worked mostly in jobs that require some level of physical labor. The Board further observes that VA treatment records indicate the Veteran stopped working in 2008 after he was involved in a motor vehicle accident that resulted in a cervical fusion. Additionally, VA examination reports indicate that the Veteran was unable to continue working as an electrician due, in part, to his cervical spine disability. However, as he is not service-connected for such disability, such may not be considered in determining whether he is entitled to a TDIU. Rather, the Board must determine if the Veteran is unable to secure or follow substantially gainful occupation consistent with his education and work history due only to his service-connected disabilities. In regard to the functional impairment resulting from the Veteran’s service-connected disabilities, the Board observes that, for the entire appeal period, his psychiatric disability has been found to result in occupational and social impairment with reduced reliability and productivity. In this regard, an August 2012 VA examination report reflects a finding that, given the Veteran’s limited improvement with various medical and psychological/psychiatric intervention and in light of his medical, educational, and vocational history, he would be limited to simple work tasks in a loosely supervised environment within his physical limitations. Specifically, she found that the Veteran would require an employment situation where he would have limited contact with peers, supervisors, and the public due to irritability and possible distractibility due to pain or adverse side effects of medication. The examiner concluded that, given the Veteran’s age, background, and ongoing physical and psychological issues, it was unlikely that he would be able to obtain/perform/sustain substantial gainful work activity. While such opinion was provided prior to the current appeal period, it is noted that the record does not indicate that the Veteran’s psychological or physical conditions have significantly improved since such time. Rather, subsequent mental health VA examinations indicate that the Veteran’s symptoms have increased in severity such that, at an April 2014 VA examination, he was noted to have depressed mood, occasional suicidal thoughts, apathy, insomnia, irritability, depressed motivation related to pain and mood, mild memory loss, and chronic pain behavior. Additionally, at a December 2016 VA examination, the Veteran reported depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He also had a lack of concentration and difficulty focusing. The examiner also indicated that, while the Veteran has not experienced a worsening of his psychiatric disability, he does have periods of worsening during times of stress. In regard to the Veteran’s left knee disability, which has been service-connected since November 24, 2014, an April 2014 VA examiner observed that such disability limited the Veteran’s ability to lift more than 20 pounds, walk more than 100 feet with frequent resting breaks, sit for longer than 30 minutes at once, or stand longer than 5 minutes at once. Additionally, a July 2015 VA examiner found that, due to such disability, he cannot walk more than one block, bend down, kneel, or squat, and has difficulty with stairs such that he has to descend backwards or avoid stairs when possible. It was also reported that the Veteran uses a cane to ambulate and therefore cannot carry items requiring two hands, therefore limiting his ability to carry heavy things. Finally, it was noted that the Veteran cannot tolerate sitting for more than 15 minutes at a time without changing positions. A November 2018 VA examiner also found that the Veteran is unable to sit, stand, or walk for prolonged periods and is unable to kneel or squat. The Veteran also reported that he occasionally uses a brace on his knee and regularly walks with a cane or a walker. As pertinent to his degenerative joint and disc disease of the lumbosacral spine with associated radiculopathy of the left lower extremity, the latter of which has been awarded a separate rating as of August 16, 2018, a September 2018 VA examination reflects the Veteran’s reports of increased lower back pain, stiffness, and radiation of pain and paresthesia through the left hip and lower extremity. While the examiner found that such disabilities did not affect the Veteran’s ability to work, it was also noted that such resulted in functional loss related to painful bending, weight bearing, sitting, standing, and getting in and out of the car. As relevant to the Veteran’s left ankle disability, while a May 2014 VA examiner found that such disability did not impact his ability to perform any type of occupational task, the Veteran reported that pain and flare-ups in his ankle prevented him from walking and standing, and needed to use a cane for additional support and balance due to his left leg and ankle conditions. Furthermore, at an October 2016 VA examination, the examiner found the Veteran’s left ankle disability rendered him unfit for occupations that require standing or walking for more than 15 minutes. Moreover, in November 2018, a VA examiner found that, due to his left ankle disability, the Veteran is unable to use stairs, walk on uneven terrain, and walk or stand for prolonged periods of time and, as a result of his associated scars, he is unable to wear boots or anything that presses on his scar. Finally, as pertinent to the Veteran’s partial edentulism of the mandible and full edentulism of the maxilla, a November 2018 VA examiner found that such disability did not impact his ability to work. Based on a review of the foregoing evidence and resolving all doubt in favor of the Veteran, the Board finds that he is entitled to a TDIU for the appeal period from January 15, 2014 to July 11, 2019. In this regard, he reported that he last worked full time in January 2009 and the evidence of record shows that the impairments associated with the Veteran’s service-connected psychiatric, left knee, back, and left ankle disabilities, with associated scars, resulted in limitations that rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, he has a high school education with apprenticeships as an auto mechanic and electrician, his employment history consists of mostly physical labor, to include most recently as an electrician, and the aforementioned VA examiners found that, due to his physical disabilities, the Veteran is unable to stand, walk, or sit for prolonged periods of time, bend down, kneel, or squat and cannot lift heavy weight, uses stairs, or wear boots or anything that presses on his left ankle scar, and his psychiatric disability results in occupational and social impairment with reduced reliability and productivity. Moreover, the August 2012 VA examiner found that the Veteran would be limited to simple work tasks in a loosely supervised environment within his physical limitations. Specifically, she found that the Veteran would require an employment situation where he would have limited contact with peers, supervisors, and the public due to irritability and possible distractibility due to pain or adverse side effects of medication. The examiner concluded that, given the Veteran’s age, background, and ongoing physical and psychological issues, it was unlikely that he would be able to obtain/perform/sustain substantial gainful work activity. Furthermore, the October 2016 VA examiner found the Veteran is unfit for occupations that require standing or walking for more than 15 minutes. In this regard, the Board notes that the foregoing assessments of the functional impact of the Veteran’s service-connected disabilities are consistent with the July 2019 determinations, which were the basis of the award of a TDIU as of July 11, 2019, that that his physical disabilities limit him to sedentary work, described as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, and pull, and sitting most of the time with walking or standing for brief periods of time. Further, while his service-connected psychiatric disability had increased in severity as of July 11, 2019, at which time such was found to result in occupational and social impairment in most areas, the aforementioned assessments are likewise consistent with the July 2019 determination that such disability results in easy distractibility, difficulty concentrating and maintaining focus, memory, and functioning around other people, a lack of energy and motivation, and irritability due to pain. Therefore, in consideration of the fact that the Veteran has only a high school education with apprenticeships, worked in physical labor, most recently as an electrician, and, due to his service-connected disabilities, uses a cane to ambulate, requires minimal contact with peers and coworkers, and is unable to engage in prolonged sitting, standing, or walking or wear boots, all of which are likely tasks inherent in his former career, the Board resolves all doubt in his favor and finds that such service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the appeal period stemming from January 15, 2014 to July 11, 2019. Consequently, a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. TDIU prior to January 15, 2014. 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 psychiatric, back, and left ankle disabilities, with associated scars, for the appeal period prior to January 15, 2014, 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 matters are REMANDED for the following action: Refer the case to the Director of Compensation Service for extra-schedular consideration of a TDIU prior to January 15, 2014, 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.