Citation Nr: 21012006 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-35 401A DATE: March 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) beginning July 1, 2014 is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities precluded him from obtaining or retaining substantially gainful employment beginning July 1, 2014, the day after he last worked full-time. CONCLUSION OF LAW The criteria for a TDIU beginning July 1, 2014 have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) and (b) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to December 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior decision on this claim in April 2018. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in April 2020 a Joint Motion for Remand (Joint Motion) was entered, vacating the Board’s April 2018 decision. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). 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 issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, 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; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it must be considered whether to refer a TDIU claim to the Director of Compensation Service for extraschedular consideration when the Veteran’s service-connected disabilities do not meet the schedular percentage requirement. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 1. Entitlement to a TDIU beginning July 1, 2014. The Veteran is currently service connected for a right knee condition with degenerative changes at 30 percent, a left knee condition with degenerative changes at 30 percent, bilateral pes planus at 30 percent, hypertension with chest pain at 20 percent, a low back condition with degenerative changes at 20 percent, tinnitus at 10 percent, right lower extremity radiculopathy associated with low back condition with degenerative changes at 10 percent, right knee patellar subluxation at 10 percent, left knee patellar subluxation at 10 percent, a left knee condition with degenerative changes (painful motion) at 10 percent, and a right knee condition with degenerative changes (painful motion) at 10 percent, as well as bilateral sensorineural hearing loss, right wrist ganglion cyst, scar residuals excision of lipoma, bilateral calcaneal spurs, and left foot hallux valgus all at zero percent, for a total combined evaluation of 80 percent. Thus, the Veteran meets the schedular threshold requirement for TDIU (disabilities affecting a single body system (orthopedic)). The Veteran filed his application for TDIU in August 2014, alleging that his disabilities caused him to resign/retire from his job as an Army instructor/teacher on June 30, 2014. He explained that he left his employment because on account of his service connected disabilities, he “can no longer walk, stand or run for long periods of time” and “[d]ue to constant pain in [his] lower back, knees and lower legs.” He indicated that he had not tried to obtain employment since he became too disabled to work. Along with his application the Veteran provided a copy of his April 2014 letter of resignation/retirement notification. The Veteran’s letter explained that he was resigning from his position due to: service retirement, service connected disabilities, and constant pain. The Veteran offered that he could “no longer walk, stand or run for long periods of time” and had “[c]onstant pain in [his] lower back, knees, and lower legs.” In VA Form 21-4192 dated in August 2014, the Veteran’s former employer indicated that the Veteran was no longer working due to normal retirement age. Additionally, the form noted that the Veteran “was given an additional planning period for rest and recoup” under concessions. The employer noted that the Veteran was receiving teacher retirement benefits effective for the rest of his life. The Veteran had VA examinations in May and June 2015 and February 2017 during which his service-connected disabilities were examined with regard to their impact on his ability to work. It was opined that the Veteran was capable of sedentary work. More specifically, that his bilateral hearing loss and tinnitus did not cause any functional limitations, his vascular disease and foot conditions did not impact his ability to work, and his heart condition and bilateral knee conditions may require a sedentary assignment. The Veteran’s vocational rehabilitation file shows the Veteran filed an application in March 2016. In response, the RO advised the Veteran that his application for vocational rehabilitation and claim/case was discontinued on April 8, 2011. The RO noted that in order to be eligible for VR&E benefits his service-connected disability must severely impair his ability to perform the career the Veteran was trained to do. If the Veteran could produce evidence of such a handicap due to his service-connected disability, he might be eligible for VR&E benefits. The Veteran did not respond. At the August 2018 hearing, in response to the representative’s comment that the Veteran was “forced to resign due to [his] service-connected disabilities,” the Veteran responded in the affirmative. The representative noted that the Veteran had not worked since 2014, “and no one would hire him based on his service-connected disability.” The representative noted that the Veteran “cannot sit down and work” and he “can’t stand up and work.” The representative noted that “if he didn’t resign they probably would have fired him due to those -- him not being able to perform those duties.” The representative maintained that “with his service-connected disabilities, he would not be able to perform any sedentary, and he can’t stand very long, can’t sit very long due to the back.” In response to the representative’s question as to whether the Veteran had tried to apply for any jobs since he left the school district, the Veteran responded as follows: “I have applied for jobs with the VA, through the federal government, through the school district, and -- I’ve got a laundry list, and I just forgot. Yeah, I have applied for many jobs…” but he was not hired. In response to the representative’s question as to what did they say when they did not hire him, the Veteran responded as follows: “Well, most of them was because of the physical limitations on my -- with my service-connected disabilities. That’s the federal side.” “And with the school district, it was going to be as a long-term sub. And I couldn’t be dependable because I didn’t know if one day I would have a crisis, and I wouldn’t be able to make it work when they needed me so -- and that’s the basic reason why I retired in ‘14, because of I used up all my sick leave for missing days off because I couldn’t get to work.” The Board considered all of this evidence and issued an April 2018 decision denying the claim for entitlement to a TDIU, noting that the Veteran had essentially indicated that he could still be working as a substitute teacher but he decided not to take the job based on what might happen and that an award of TDIU cannot be based on unrealized events. As noted above, the Veteran appealed this decision to the Court and in April 2020 a Joint Motion was entered remanding the claim back to the Board to consider the evidence in light of the recent holding in Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Board notes that the evidence previously presented by the Veteran was considered and the requirements of Ray to consider the Veteran’s history, education, skill, training, and physical and mental abilities were discussed in the April 2018 decision, as such discussion is required in all TDIU claims. Nevertheless, following the Joint Motion the Veteran provided an August 2020 affidavit, copies of his social security earnings record, and a November 2020 vocational assessment report completed by a certified rehabilitation counselor who opined that it was at least as likely as not that the Veteran’s service-connected disabilities precluded him from securing and following substantially gainful employment since at least June 2014. The Board notes that the rehabilitation counselor provided sufficient rationale to support his opinion. Accordingly, resolving reasonable doubt in favor of the Veteran, entitlement to a TDIU is granted beginning July 1, 2014, the day after the Veteran last worked full time. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.