Citation Nr: 21013349 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-09 188 DATE: March 9, 2021 ORDER Effective December 25, 2013 through September 7, 2017, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) (exclusive of the periods of July 18, 2014 through August 31, 2015, and June 17, 2016 through July 31, 2017, and from September 8, 2017), is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Effective December 25, 2013 through September 7, 2017 (exclusive of the periods of July 18, 2014 through August 31, 2015, and June 17, 2016 through July 31, 2017, and from September 8, 2017), the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. 2. The Veteran is in receipt of a combined 100 percent rating for service-connected disabilities effective from September 8, 2017. CONCLUSION OF LAW Effective December 25, 2013 through September 7, 2017, the criteria for entitlement to a TDIU (exclusive of the periods of July 18, 2014 through August 31, 2015, and June 17, 2016 through July 31, 2017, and from September 8, 2017) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Navy from June 1981 to July 1981, and in the United States Army from September 1981 to September 1985. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) November 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In September 2020 the Veteran appeared before the undersigned Veterans’ Law Judge at a Board hearing. A transcript of the hearing has been reviewed, and has been associated with the claims file. 1. Entitlement to a TDIU The Veteran claims his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The Veteran filed his VA 21-8940 Application for Increased Compensation Based on Unemployability on May 30, 2014, though for reasons discussed below the earliest possible date for eligibility for a TDIU is December 25, 2013. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from a common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether the Veteran is entitled to TDIU, neither the Veteran’s non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). 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. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The AOJ did not refer this case for extraschedular consideration. The essential issue is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a “living wage”). 38 C.F.R. § 4.16 (b); Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other Veterans having the same compensation rating. The sole fact that the Veteran 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 is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In order for the Veteran to be entitled to an effective date within one year of the May 2014 application, the increase in the Veteran’s disability needs to have occurred (have been factually ascertainable) within one year prior to the claim. However, if the increase (here, TDIU), occurred more than one year prior to the claim, the increase is effective the date of claim. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (“It is clear from the plain language of 38 U.S.C. § 5110 (b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”). For the reasons discussed below, the Veteran became too disabled to work within the one-year period prior to the claim, in this instance on December 25, 2013. As such, the effective date for the award of the Veteran’s TDIU rating is properly the date on which the Veteran became too disabled to work due to his service-connected disabilities. The Board is unable to consider the period from 2009 to one year before the date of the claim as that is outside of the applicable appellate period. As discussed above, the Veteran’s claim for a TDIU was received in May 2014. At that time, the Veteran’s had the following conditions found to be service connected: cervical radiculopathy of the right upper extremity associated with degenerative joint disease of the cervical spine, 20 percent disabling; degenerative joint disease of the left ankle, 10 percent disabling; degenerative joint disease of the cervical spine, 10 percent disabling; degenerative joint disease of the lumbar spine, 10 percent disabling; degenerative joint disease of the right ankle, 10 percent disabling; degenerative joint disease of the bilateral feet, metatarsalgia, 10 percent disabling; left knee patellofemoral pain syndrome, 10 percent disabling; right knee patellofemoral pain syndrome, 10 percent disabling; tinnitus, 10 percent disabling; and bilateral hearing loss, 0 percent disabling. The Veteran’s combined disability rating has been at least 70 percent, exclusive of the periods for which a temporary total rating was assigned, effective from July 10, 2012, and he has established disabilities of both lower extremities and/or disabilities affecting a single body system that combined to at least 40 percent for that same period. As such, he meets the threshold requirements for entitlement to a TDIU as set forth in 38 C.F.R. § 4.16(a). In May 2014 the Veteran stated that he “can no longer physically do the hard work due to pain and weakness.” In May 2014 the Veteran submitted a disability benefits questionnaire (DBQ), completed by Dr. M., where she stated that the Veteran’s ability to perform physical labor was “limited” due to his disabilities. In August 2014 the Veteran submitted a statement from a VA vocational rehabilitation counselor (VRC), who noted that the Veteran has “few transferrable skills” and “barriers to employment” due to his service-connected conditions. In a separate statement, the VRC explained that the Veteran’s service-connected disabilities prevent him from “maintaining employment,” and he has a “serious employment handicap that contributes to vocational impairments.” At that time, despite the Veteran’s attempt to obtain additional vocational training, the VRC did not find the Veteran’s goals to be “feasible” although he was later awarded such benefits. In his March 2015 Notice of Disagreement, the Veteran stated that, as someone who previously ran his own business, “as a former employer [he] would not hire” himself “due to the simple facts that [he] would be undependable and very limited in job abilities.” The Veteran’s disabilities prevented him from doing any “physical work,” and he could not “sit for any length.” The Veteran attended school from August 2014 to May 2018 through VA vocational and rehabilitation services, and obtained his Master of Social Work degree. In a December 2019 vocational assessment, VA found that the Veteran was “qualified” to perform the job duties of a drug and rehabilitation counselor. Overall, the VRC found that the Veteran was “rehabilitated” and was able to obtain substantially gainful employment in his chosen field. The Board notes that the VRC found that the Veteran was “currently medically stable,” and the Veteran agreed that with his new training he could handle a job even with his service-connected disabilities. By the Veteran’s own testimony at his Board hearing, and the evidence in his vocational rehabilitation records, the Veteran was able to obtain substantially gainful employment as of July 23, 2018, as a result of his successful completion of his higher education. The record indicates that as of December 2019, after over a year of employment as a substance abuse counselor beginning on July 23, 2018 with a monthly salary of $2,800.00, the VRC found that the Veteran was successful in obtaining “permanent full-time suitable employment.” At his September 2020 Board hearing, however, the Veteran stated that while he could possible work two or three days a week, for short periods of time, it was “near impossible” for him to work a full-time, 40-hour work week. However for the relevant period prior to the effective date of the Veteran’s 100 percent combined rating (September 18, 2017), the Veteran has reported that he last worked full-time June 15, 2009 and became too disabled to work on December 25, 2013, per a November 2016 VA 21-8940 which was submitted in response to the AOJ inquiry to verify his employment history. He was reportedly self-employed in construction from January 1990 to December 2013 and indicated that time loss from illness was two days per week with highest gross earnings per month of $1,600.00. The Veteran’s medical records corroborate this, as treatment notes from mid- to late 2013 show that the Veteran was employed until the end of the year. He also reported that he worked as a drug counselor from October 6, 2015 to June 15, 2016, working 16 hours per week and losing no time from illness with $1,040.00 per month the highest gross income for that job. The Veteran explained in an attached statement that he worked as an intern at St. Mary’s Hospital from September 2014 to May 2015 as part of his training at Schenectady County Community College; then as a drug counselor at St. Mary’s Hospital from October 6, 2015 to June 15, 2016 for just under $15 per hour; and had not worked since his June 2016 ankle surgery, resuming classes September 8, 2016. Given the above, it is clear that the Veteran attempted to obtain additional training and experience to allow him to remain employed despite his service-connected disabilities. Despite that, neither the internship nor the period of employment at St. Mary’s Hospital reached the level of substantially gainful employment, for broadly similar reasons. Both were temporary, low paying positions, even if the opportunity at St. Mary’s Hospital was not intended to be temporary. However, the evidence shows that the Veteran’s disabilities prevented him obtaining substantially gainful employment, as shown by the fact that the Veteran was unable to continue working after less than a year. As such, the Board finds that the little work he was able to do was tantamount to marginal employment. The Board finds that, in light of the severity of the Veteran’s bilateral foot, ankle, and knee disabilities, as well as his cervical spine disability and its residuals, a TDIU is warranted for the period from December 25, 2013 through September 17, 2017, exclusive of the periods of July 18, 2014 through August 31, 2015, and June 17, 2016 through July 31, 2017, and from September 8, 2017, for which a 100 percent rating has been assigned. There is no evidence to suggest that the Veteran was engaged in substantially gainful employment during this period. As for the periods of July 18, 2014 through August 31, 2015, and June 17, 2016 through July 31, 2017, and from September 8, 2017, the Veteran is in receipt of either a temporary total rating or a 100 percent combined disability rating. He was also awarded special monthly compensation from July 18, 2014 to September 1, 2015 and from June 17, 2016 to July 31, 2017. A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). The Veteran's claim of entitlement to TDIU from September 8, 2017 has been rendered moot by the award of a 100 percent combined schedular evaluation from that date. There is no additional benefit to be gained through TDIU, as all conditions including of the ankles, lumbar spine, cervical spine, right upper extremity and bilateral lower extremities, feet, knees, hearing loss and tinnitus, combine to render the Veteran unemployable, and no single condition can be said to result in unemployability. TDIU would be duplicative of the combined schedular rating. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). There is no suggestion by the Veteran or in the record that a single service-connected disability has prevented the Veteran from working; it is contended and shown by the record that it is the combination of service-connected disabilities that has prevented substantially gainful employment during periods of the appeal. Therefore, consideration of the Veteran’s entitlement to a TDIU from September 8, 2017 is moot. If VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). Therefore, for the appeal period beginning December 25, 2013 through September 7, 2017 (exclusive of the periods of July 18, 2014 through August 31, 2015, and June 17, 2016 through July 31, 2017, and from September 8, 2017) the Veteran’s claim for a TDIU is granted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.