Citation Nr: 21021943 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-32 372 DATE: April 14, 2021 ORDER The claim for a total disability rating based on individual unemployability as due to service-connected disability (TDIU) is granted. FINDING OF FACT The Veteran is incapable of substantially gainful employment due to a combination of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.15, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Marine Corps from October 1970 to November 1971. Previously, a September 2015 videoconference hearing was held before a Veterans Law Judge (VLJ) of the Board, the transcript of which is of record. In January 2021, the Board sent a letter notifying the Veteran that the prior hearing judge had retired, and there was the opportunity for a second hearing before another VLJ. Since there was not a response received after 30 days according to the standard response time as stated within the Board’s letter, the case now proceeds on its merits. Also, this correspondence was originally returned undeliverable but later resent to the correct address of record. Looking back to the procedural history, a November 2016 Board decision/remand resolved several issues then on appeal, not the subject of the instant discussion, then further remanded two claims for increased rating for a service-connected mental condition and the instant claim for TDIU. Following this, an April 2020 Board decision was issued, which determined that a higher initial rating of 70 percent was warranted for the service-connected mental condition. As the Board then further indicated, this claim was adjudicated and decided following a February 2019 hearing limited to that issue, while the TDIU claim was the going to be subject of a future Board decision. Thereafter, an appeal was filed to the U.S. Court of Appeals for Veterans Claims (Court) from the April 2020 Board decision on the claim for increased rating for a mental condition, to the extent there was not a higher rating than 70 percent. In January 2021, the Veteran’s attorney in that matter withdrew the appeal. The TDIU still remains for consideration, also notated according to the aforementioned filing before the Court. The present Board decision addresses the claim. The claim for a TDIU is granted. Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the individual is unable to secure and maintain substantially gainful employment because of the severity of her service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is “[in]capable of performing the physical and mental acts required by employment,” and is not based solely on whether she is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes the situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for TDIU, the critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include her employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, “marginal employment” shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Where the claimant’s working capacity might be limited to “marginal employment,” the question of whether marginal employment must be addressed including where the Veteran is not presently employed. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Marginal employment generally shall be deemed to exist when a Veteran’s earned annual 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. Faust, 13 Vet. App. 342. The Veteran meets the preliminary schedular VA criteria for a TDIU, which results from having at least one service-connected disability rated 60 percent. See 38 C.F.R. § 4.16(a). In this case, the Veteran’s service-connected mental condition – mixed anxiety disorder with a depressed mood – rated 70 percent from December 17, 2012 onward. The Veteran is also service-connected for the following disabilities: (1) service-connected right osteochondral fracture articular surface distal femur, patellofemoral joint with arthritis, rated 20 percent; (2) degenerative joint disease left knee associated with right osteochondral fracture articular surface distal femur, patellofemoral joint with arthritis, rated 10 percent; (3) scar right knee, associated with status-post right osteochondral fracture, rated noncompensable (0 percent), since May 28, 2016; (4) residual scar, left knee, rated noncompensable since May 28, 2016. After resolving doubt in the Veteran’s favor, the Board finds his service-connected disabilities render him unable to secure or follow a substantially gainful occupation, as explained below. See 38 C.F.R. § 4.16. On December 2014 VA examination for the service-connected left knee disorder, the examiner addressed occupational functioning, finding the Veteran may need modifications during weight-bearing activities and where a joint is overused or repetitively stressed; to avoid or limit stair climbing, squatting, crawling, or kneeling; restrict prolonged standing and walking; and take additional rest periods as needed. The examiner also noted that for severe lower extremity joint disorders, the individual may require a more sedentary assignment. On the January 2015 VA examination for service-connected adjustment disorder, the examiner found the Veteran’s disability caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner recorded the Veteran’s work history as having retired as a postal service supervisor in 2008 due to physical conditions. The examiner noted that his anxiety and depression escalated after his retirement. At the September 2015 Board hearing, the Veteran testified that his educational history consisted of about two years of college and vocational training in the areas of auditing and marketing. He reported his last job with the Post Office was as an internal auditor. In November 2015, a private psychologist reported that the Veteran would probably have to be absent from a job more than three times a month due to his mental condition and could not work consistently due to depression. A December 2015 private psychologist found the Veteran suffered from moderate to marked social and occupational impairment in some areas, and his ability to maintain gainful employment across a typical work week is markedly impaired due to significant anhedonia, social withdrawal, fatigue, and significant avolition (poor motivation). The evaluator explained that he maintained a low level of functioning, was able to get up and perform basic hygiene and living needs but spent most the day alone watching television. On a May 2016 TDIU application, VA Form 21-526, the Veteran reported last working in January 2008 as an internal auditor with the U.S. Postal Service and having completed two years of college coursework. He did not include any additional sources of educational or vocational training on this form. On VA examination in June 2016 for the service-connected adjustment disorder, the examiner indicated the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning, and stated that the Veteran’s emotional state may result in occasional absenteeism or work ineffectiveness, but does not seriously impact his occupational opportunities. Instead, the examiner noted his physical condition caused the majority of his work difficulties. On the VA examination from August 2016 for a knee condition, the VA examiner stated in regard to the ability to perform any type of occupational task, such as standing, walking, lifting, sitting, etc., that there was not any such limitation. On re-examination February 2017, on a similar inquiry, the examiner found the Veteran could not stand or walk for a prolonged period of time due to pain. The April 2019 VA examination for the lower extremities condition, the examiner found the Veteran was unable to stand or walk for long times due to knee pains and also limited in bending and stooping because of decreased knee range of motion. On the May 2019 mental health examination, the overall level of impairment was estimated at occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner found the Veteran’s adjustment disorder resulted in difficulties getting along with others, adapting to stressful situations, and consistently attending to responsibilities. However, the examiner concluded that his current mental health symptoms would not preclude completely his ability to function in a work environment, particularly with appropriate treatment/counseling. The examiner further found that based on his presentation, he might best perform in and adapt to a work environment that did not require significant interactions with the public, allowed some flexibility with regard to his schedule with structure and close supervision, and allowed him to complete tasks, which were familiar to him and did not occur under significant time constraints. Based on the preceding, the Board finds the criteria for TDIU have been met. The evidence shows the Veteran’s service-connected knee disabilities impaired his ability to stand or walk for prolonged periods, squat, kneel, etc., which would be required by most labor jobs, such as construction or retail. Moreover, the evidence shows that the Veteran would experience absenteeism and limitations in his effectiveness in other jobs due to his mental health disability. In addition to the favorable opinion by the December 2015 private evaluator, the Board is further persuaded by the findings of the May 2019 VA examiner. Specifically, the Board finds that given his education and occupational history, the Veteran would be hard pressed to find and maintain a job satisfying all modifications suggested by the examiner – not working with the public, flexibility of schedule, and familiar tasks without significant time constraints. The Board finds this evidence is at least in equipoise with the negative opinions of other VA examiners and the benefit of the doubt regarding unemployability should be resolved in the Veteran’s favor. (Continued on the next page)   Accordingly, the Veteran’s service-connected disabilities prevent him from securing and maintaining a substantially gainful occupation, and compensation based on TDIU is warranted. A.P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A.L., 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.