Citation Nr: 21016087 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 12-24 242 DATE: March 19, 2021 ORDER A total disability rating based on individual unemployability (TDIU) from April 12, 2012 to June 28, 2018 is granted. FINDING OF FACT The Veteran is rendered unable to maintain substantially gainful employment as a result of service-connected disabilities from April 12, 2012 to June 28, 2018. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to TDIU from April 12, 2012 to June 28, 2018 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to January 1996. This matter comes before the Board of Veterans’ Appeals (Board) from a May 13, 2011 claim for TDIU that was denied in a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in November 2020. The Board found that the claim for TDIU from June 28, 2018 was moot as the Veteran was in receipt of a 100 percent combined schedular rating; however, the Board remanded the issue of entitlement to TDIU for the period prior to June 28, 2018 because the evidence suggested that the Veteran was unable to follow substantially gainful employment due to the service-connected disabilities prior to June 28, 2018. The November 2020 Board remand cited favorable evidence in April 2012 private treatment records, March 2016 private treatment records, April 2016 private treatment records, and a January 2017 VA vocational rehabilitation assessment. The Board remanded the issue of TDIU for prior to June 28, 2018 for referral to the VA’s Director of Compensation Services for adjudication of TDIU in the first instance, as required by 38 C.F.R. § 4.16(b). The VA’s Director of Compensation Services denied a TDIU. See November 2020 VA Memo; December 2020 VA Memo. A supplemental statement of the case was issued in January 2021, continuing denial of the TDIU for the period prior to June 28, 2018. Legal Authority for TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (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). 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). 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 United States 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. See 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 April 12, 2012 to June 28, 2018 The Veteran contends that the service-connected disabilities rendered him unable to maintain employment at First Premier Bankcard, explaining that he had to take many days off and eventually leave employment because he had difficulty standing, twisting, bending, and lifting objects. The Veteran explained that he performed clerical work at the First Premier Bankcard from May 2002 to April 2012. The Veteran reported that he became too disabled to work on April 12, 2012. The Veteran reports that he has not had any education or training since he became too disabled to work. The Veteran completed high school and four years of college. See April 2012 Application for Increased Compensation Based on Unemployability.  During this period on appeal, from April 12, 2012 to June 28, 2018, the Veteran was service connected for degenerative arthritis of the thoracolumbar spine rated at 20 percent from August 26, 2005 to September 19, 2018, degenerative arthritis of the cervical spine rated at 20 percent from August 1, 2000 and decreased to 10 percent from May 1, 2012 to September 19, 2018, hiatal hernia rated at 10 percent from February 1, 1996 to September 19, 2108, status post total right knee arthroplasty rated at 10 percent from December 29, 2000 to June 26, 2018, umbilical hernia rated at 20 percent from July 1, 2001, right shoulder bursitis rated at 10 percent from August 26, 2005 and decreased to 0 percent from May 1, 2012 to September 19, 2018, left knee tendonitis rated at 10 percent from March 1, 1999 to September 19, 2018, radiculopathy in the lower right extremity rated at 10 percent from December 4, 2015, left ankle arthritis rated at 10 percent from February 1, 1996 and decreased to 0 percent from May 1, 2012 to January 17, 2019, fractured right third and fourth toes rated at 0 percent from February 1, 1996, sinusitis rated at 0 percent from February 1, 1996, hemorrhoid rated at 0 percent from February 1, 1996, left inguinal hernia repair rated at 0 percent from February 1, 1996, scar in the lower right quadrant rated at 0 percent from May 18, 1999, status post umbilical hernia rated at 0 percent from September 1, 2003, and residuals of right ankle fracture rated at 20 percent from August 26, 2005 and decreased to 0 percent from May 1, 2012. The Veteran was in receipt of a combined schedular disability rating of 80 degrees from August 26, 2005 to May 1, 2012 and a combined schedular rating of 60 degrees from May 1, 2012 to June 28, 2018. According to 38 C.F.R. § 4.16(a)(3), disabilities affecting a single body system, such as the skeletal system in this case, can be combined under 38 C.F.R. § 4.25 to meet the 40 percent rating threshold for multiple disabilities. As such, the service-connected disabilities meet the threshold requirements for TDIU eligibility under 38 C.F.R. § 4.16. After a review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran was unable to maintain (follow) substantially gainful employment due to the service-connected disabilities from April 12, 2012 to June 28, 2018. According to an April 2012 private treatment record, a private examiner opined that the cervical and lumbar spine prevent the Veteran from working. The private examiner stated that it would be a “hazard” to work and that the Veteran should avoid standing more than ten minutes walking, and all recurrent twisting, bending, or lifting. The Veteran submitted to multiple VA examinations in December 2015. The VA examiner found that the right shoulder bursitis impacted employment because it resulted in weakness, difficulty lifting objects, and pain with flareups. Regarding the cervical spine, the Veteran reported difficulty twisting the neck and driving, stiffness, and pain, and the VA examiner found that it impacted employment because of the stiffness and limitation of movement. The VA examiner found that the knee disabilities impact employment because the Veteran had difficulty walking and climbing stairs; the Veteran also reported difficulty standing and sleeping, swelling, pain, and the need to wear braces. Regarding the thoracolumbar spine, the Veteran reported that this disability “affects everything,” like bending, lifting, or getting out of the case; the VA examiner found that the thoracolumbar spine impacted employment because of these reports by the Veteran. The VA examiner opined that the left ankle disability impacts employment because the Veteran had difficulty standing and the need for the Veteran to shift his weight from one leg to the other. The service-connected toes, hernia, sinusitis, scars, and hemorrhoid disabilities manifested in physical limitations that have only had a minor effect on the Veteran’s employment. See December 2015 VA Examinations. In March 2016 private treatment records and April 2016 private treatment records, private examiners explained that the service-connected spine and knee disabilities preclude the Veteran from working. In a January 2017 VA Memo, the VA counselor opined that the Veteran is not employable due to the service-connected disabilities. The VA counselor explained that the hernia disability makes it difficult for the Veteran to turn and twist. The pain associated with the lumbar spine disability causes him to change positions frequently and makes it difficult to sleep. The report also indicated that the Veteran experienced instability because of the knee disabilities which requires him to wear a brace and use a cane. The counselor noted that the neck disability limits the Veteran’s range of motion. The counselor also noted that the ankle disabilities make it difficult to walk and the right shoulder disability affects the Veteran’s strength and range of motion. The Board resolves reasonable doubt in favor of the Veteran to find that the service-connected disabilities have rendered the Veteran unable to maintain substantially gainful employment for the period from April 12, 2012 to June 28, 2018. For these reasons, the Board finds that the criteria for a TDIU have been met for this period. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.