Citation Nr: 21016070 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-39 397 DATE: March 19, 2021 ORDER From November 20, 2015, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT For the rating period from November 20, 2015, the Veteran has been rendered unable to maintain substantial gainful employment due to service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, from November 20, 2015, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from October 1987 to March 1988, and from August 2002 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision from the Regional Office (RO). In January 2019, the Veteran testified at a Central Office Board hearing in Washington, D.C., before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This matter was before the Board in March 2019 and January 2020. In January 2020, the Board remanded the issue on appeal to refer the matter to the Director of Compensation Service for consideration of TDIU. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the March 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). TDIU Disability ratings are determined by applying the criteria set forth in VA’s Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU from November 20, 2015 is Granted. In January 2018, the Veteran submitted a completed TDIU form (VA Form 21-8940, Application for Increased Compensation Based on Unemployability). The Veteran represented that he had not been able to maintain (follow) substantial gainful employment since 2013 due to the service-connected back and left wrist disabilities. During the January 2019 Board Hearing, the Veteran testified that he has difficulty moving or bending the back, as he has pain and stiffness in his back most of the time; has shooting pain midway through the back and that pain medication does not completely resolve the pain; has difficulty writing and picking things up with his left dominant hand due to pain, stiffness, and a knot in his left wrist; and experiences shooting pain in the wrist with certain movements. See March 2019 VA Form 21-8940, January 2019 Board hearing transcript. For the period from November 20, 2015, the service-connected disabilities are the low back disability (rated 20 percent from November 20, 2015, and 40 percent from August 31, 2019) and left wrist degenerative joint disease (rated 10 percent from July 29, 2011) for a combined rating of 30 percent from November 20, 2015, and 50 percent from August 31, 2019. Because the combined rating percentage does not meet the standards of 38 C.F.R. § 4.16(a) for TDIU eligibility for the rating period from August 10, 2012 (the date of claim), a TDIU may be considered only under 38 C.F.R. § 4.16(b). Pursuant to the January 2020 Board Remand, the appeal for a TDIU was referred to the Director of Compensation Service for consideration (adjudication) of TDIU under 38 C.F.R. § 4.16(b). In November 2020, the Director of the VA Compensation Service adjudicated and denied a TDIU. Because the appeal for a TDIU under 38 C.F.R. § 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides 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 Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation & Pension is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). After reviewing all the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise on the question of whether the service-connected disabilities prevent the Veteran from maintaining substantial gainful employment for the rating period from November 20, 2015 forward. A review of the record reflects credible lay and medical evidence indicating that the service-connected low back and left wrist disabilities have caused chronic pain with stiffness, and significant limitation of motion. Records from the Social Security Administration (SSA) show the Veteran is in receipt of disability benefits due to other unspecified arthropathies, which include the Veteran’s degenerative joint disease and scoliosis of the thoracolumbar spine and degenerative joint disease of left wrist. See March 2016 SSA Determination During the relevant rating period, VA treatment notes reflect that the thoracolumbar spine disability has manifested as tenderness, stiffness, and painful limitation of motion with range of motion that is decreased by up to 50 percent during episodes of severe back pain. Additionally, the left wrist disability has manifested as severe arthritis in the left wrist with painful limitation of motion and limited dexterity of the left dominant hand that makes it difficult to write and lift items with his left hand due to pain. See November 2015, June 2015, June 2018 VA treatment records. The VA examiners in December 2015 and August 2019 noted that the Veteran reported being unable to lift, pull, or push with the left hand, and is limited in prolonged standing, walking, and stair climbing due to the low back disability; December 2015, August 2019 VA examination reports. In a November 2015 statement, Dr. Sager, a treating VA physician, opined that the Veteran is unable to work due, in part, to the service-connected back and left wrist disability. Specifically, Dr. Sager assessed that the service-connected back disability limits the ability to sit or stand more than 15 minutes without changing positions and to lift more than 10 pounds, climb, bend, kneel, or squat due to increased pain. Additionally, Dr. Sager noted that the Veteran also has chronic damage to dominant left wrist with limited range of motion, so cannot lift with the left hand or perform activities that require pushing, pulling, or fine manipulation. See November 2015 Correspondence. (Continued on the next page)   A review of the record reflects that a high school education, a few months of college, and a past work history as a ship fitter and welder. See March 2019 TDIU claim. The Veteran’s past occupations likely involved heavy labor that required the capacity for occasional to frequent standing, crouching, squatting, stooping, and kneeling, as well as the ability to lift, carry, push, and pull heavy (50+ pounds) items, which likely exceeded the Veteran’s functional capacity from November 20, 2015 given credible lay and medical evidence of chronic low back pain with significant limitation of motion, as well as chronic pain and stiffness in the left wrist, which further limits the Veteran’s dexterity and fine manipulations in his left dominate hand. In addition, while the Veteran completed less than a one year of college coursework in Human Resources, his limitations in manual dexterity and fine manipulations would likely preclude him from performing most jobs that are performed in primarily seated positions due to limitations that would likely preclude writing and typing on a frequent basis. See March 2019 TDIU Claim. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, given the Veteran’s functional limitations, for the period from November 20, 2015, the service-connected disabilities prevent the Veteran from performing the type of employment for which he is trained. Given the Veteran’s physical limitations due to the service-connected disabilities, the Board finds that the service-connected disabilities are of sufficient severity to preclude maintaining substantially gainful employment from November 20, 2015. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a TDIU is warranted for the TDIU period from November 20, 2015. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.