Citation Nr: 21020878 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-45 431 DATE: April 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from August 8, 2017 to from December 26, 2017, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT From August 8, 2017 to from December 26, 2017, the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW From August 8, 2017 to from December 26, 2017, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1997 to September 2014. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied entitlement to a TDIU and continued a 30 percent evaluation for posttraumatic stress disorder (PTSD). The Veteran disagreed with the RO’s denial of an increased rating for PTSD, and a Statement of the Case was issued in February 2017 addressing the claims for PTSD and TDIU. In August 2017, the Veteran timely appeal the issue of entitlement to a TDIU. On December 27, 2017, the Veteran submitted an intent to file a claim for compensation. On December 30, 2017, the Veteran submitted VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, for inter alia, an increased evaluation for PTSD, currently evaluated as 30 percent disabling. In an April 2018 rating decision, the RO increased the rating for PTSD to 100 percent, effective December 27, 2017, the date of intent to file. The RO also granted entitlement to special monthly compensation (SMC) effective December 27, 2017. In February 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. 1. TDIU Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having 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: 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. The Veteran is in receipt of a 100 percent schedular rating for PTSD and SMC pursuant to 38 U.S.C. § 1114(s) from December 27, 2017 based on this 100 percent rating and the remaining disabilities combining to 60 percent. A 100 percent rating does not necessarily render entitlement to a TDIU moot because TDIU can assist a veteran in establishing entitlement to SMC pursuant to 38 U.S.C. § 1114(s) if a single service connected disability warrants TDIU, therefore constituting a disability rated total, and the remaining disabilities combine to 60 percent. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In this case, however, the Veteran is in receipt of SMC(s) from December 27, 2017. Thus, the Board must consider entitlement to a TDIU prior to December 27, 2017, the effective date of the schedular 100 percent rating for PTSD and SMC(s). Prior to December 27, 2017, the Veteran’s service-connected disabilities are as follows: tension headaches, rated as 50 percent disabling; PTSD, rated as 30 percent disabling; degenerative disc disease and spinal stenosis, cervical spine, rated as 30 percent disabling; impingement syndrome, right shoulder with degenerative arthritis, rated as 20 percent disabling; radiculopathy with carpal tunnel syndrome (wrist) right upper extremity associated with degenerative disc disease and spinal stenosis, cervical spine, rated as 20 percent disabling; degenerative arthritis with patellofemoral pain syndrome, left knee, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; patellofemoral pain syndrome and history of instability right knee, rated noncompensable; and osteoarthritis right knee, rated noncompensable. The Veteran has been in receipt of a combined 90 percent rating since October 1, 2014. Under these circumstances, the Veteran met the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. For the following reasons, a TDIU from August 8, 2017 to December 26, 2017 is warranted. In this case, the Veteran submitted a VA Form 21-8940 for TDIU in August 2017, on which he indicated that he became too disabled to work in August 2017. He indicated that he completed four years of high school. The Veteran noted that he had not received any other education or training since becoming too disabled to work. He noted chronic pain and indicated that he was unable to lift or bend without pain. The Veteran reported symptoms of neck spasms, headaches, and inability to focus on tasks at work. He noted that he is required to take medication but would not be able to work while taking the medication. On a September 2017 TDIU application, the Veteran reported that he worked in retail at Lowes from August 2012 to August 2017 and became too disabled to work full-time in on August 8, 2017. He indicated that he completed four years of high school. The Veteran noted that he had not received any other education or training since becoming too disabled to work. On an October 2017, VA Form 21-4192, Request for Employment Information in Connection with Claim, the Veteran’s employer, Lowes, reported that the Veteran began employment on July 23, 2012 as a customer service associate and was still employed. The Veteran went from full-time to part-time, effective August 2017. The Veteran earned $14.16 an hour and worked 10 to 20 hours weekly. The employer indicated that no concessions for disability were requested. In a January 2018 TDIU application, the Veteran indicated that he worked at Lowes from August 12, 2012 to December 30, 2017 and became too disabled to work full-time in on August 11, 2017. He indicated that he completed four years of high school. The Veteran noted that he had not received any other education or training since becoming too disabled to work. On May 18, 2017 the Veteran underwent multiple VA examinations. The headaches examiner determined that the Veteran’s headaches condition impacts his ability to work, as he has to relax when getting severe headaches. He works with pain and medication with milder attacks. The neck examiner determined that the Veteran’s neck condition impacts his ability to work, as it severely impairs his ability to drive longer than one hour, as well as exercising and sports requiring turning of the head and neck. The peripheral nerves examiner determined that the Veteran’s right wrist condition impacts his ability to work, due to impairing activities like grasping, gripping, holding and lifting, as well as fine movements, like typing and writing. On December 11, 2017, the Veteran underwent multiple VA examinations. The headaches examiner determined that the Veteran’s headaches condition impacts his ability to work, as he has to be in a dark, quiet room during headaches. The neck examiner determined that the Veteran’s neck condition impacts his ability to work, as he has limited range of motion to cervical spine and cannot perform duties which require heavy lifting, reaching above head. The examiner noted that there are no sedentary restrictions. In a December 2017 letter, the Veteran reported that as of the date of the letter, he could no longer work his part-time job, as he had one of the worst attacks from his service-connected disability in years. He indicated that he was only working 10 hours a week in the evening due to his conditions. At his February 2021 virtual Board hearing, the Veteran testified that he went from full-time to part-time at Lowes, due to his PTSD, anxiety, panic attacks, and stress from being around a lot of customers. He called off from work one to three days a week due to mental health issues, neck pain and headaches. The Veteran indicated that there was no accomodation at work, since it was a retail job that involved working with people, stocking, loading, and unloading. He noted that shortly after going part-tine he stopped working due to his service-connected PTSD, spine, and headache disabilities. The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The above evidence reflects that the Veteran’s service-connected psychiatric disorder, headaches, neck, and right wrist precludes him from securing substantially gainful employment given his educational and occupational history. He went from full-time to part-time employment on August 8, 2017, due to his service-connected disabilities. The Veteran worked 10 to 20 hours weekly as a customer service associate and missed one to three days a week due to service-connected disabilities. The Board finds the Veteran’s employment as a part-time customer service associate is marginal employment from August 8, 2017, the date the Veteran last worked full-time. Thus, entitlement to a TDIU is warranted from August 8, 2017 to December 26, 2017. 38 C.F.R. § 4.16 (a). As entitlement to TDIU is based on multiple disabilities and there is no evidence or argument that a single disability caused unemployability for this period, the Board will not consider entitlement to SMC(s). Cf. Perciavalle v. Wilkie, 32 Vet. App. 117, 122 (“It is true that SMC benefits ‘are to be accorded when a veteran becomes eligible without need for a separate claim’”) (quoting Bradley v. Peake, 22 Vet. App. 280, 286 (2008)). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.