Citation Nr: 21023058 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 09-48 686 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1998 to April 1998 and from June 1998 to October 2004. This matter was previously before the Board in April 2018. In the decision, the Board denied the Veteran’s claim for entitlement to TDIU finding that the Veteran abandoned his claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court) and the parties entered into a Joint Motion for Partial Remand (JMPR) in July 2019. In the JMPR, the parties agreed that the portion of the Board’s decision denying entitlement to TDIU would be vacated and remanded. Following the JMPR, the Board once again denied the Veteran’s claim for TDIU in a January 2020 decision. The Veteran appealed the Board’s 2020 decision to the Court and the parties entered into a Joint Motion for Remand. There, the Parties agreed that vacatur and remand were required because the Board erred when it failed to provide an adequate statement of reasons or bases supporting its denial to TDIU. Specifically, the Board failed to address both the combined effects of the Veteran’s multiple service-connected disabilities and how they relate to his occupational history. The matter has returned to the Board for compliance with the Court’s order. Entitlement to a TDIU. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and 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) disabling 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). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Ray v. Wilkie, 31Vet. App.at 73. In determining whether an appellant is entitled to a total disability rating based on individual unemployability, neither the appellant’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran’s education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Here, the Veteran meets the percentage requirements for a TDIU based on service-connected disabilities of PTSD, rated as 30 percent disabling; lumbar strain, rated as 10 percent disabling; right knee strain with degenerative arthritis, rated as 10 percent disabling; left knee strain with degenerative arthritis, rated as 10 percent disabling; right knee limitation of extension, rated as 10 percent disabling; left knee limitation of extension, rated as 30 percent disabling; and right hip strain, affecting adduction, abduction, and rotation, rated as 10 percent disabling. For the purposes of meeting the schedular requirements for the assignment of a TDIU, the Veteran’s service-connected left and right knee disorders, being disabilities of both lower extremities, including the bilateral factor, are considered one disability, which combine to a rating of 50 percent; and, the Veteran had a combined disability rating of 50 percent, as of October 9, 2009. Thus, for the entire appeal period, the schedular criteria for a TDIU have been met. 38 C.F.R. § 4.16(a). Therefore, the pertinent question is whether these service-connected disabilities preclude substantially gainful employment. With regard to the Veteran’s education and vocational training he has a Bachelor of Arts degree in criminal justice. The Veteran has stated he pursued a degree in criminal justice with the goal of entering law enforcement. However, the Veteran has stated that after earning his degree he realized that goal would not happen due to his disabilities. Specifically, the Veteran felt he was precluded from entering a police academy due to his inability to run or perform various activities. Furthermore, the Veteran states his condition has only worsened since the time he completed his degree in 2010, making a career as a police officer impossible. The Veteran later pursued IT classes through VA, but withdrew from the program after it became clear he was not eligible for tuition funding from VA. Accordingly, the Veteran contends his criminal justice degree does not offer any employment prospects and he has not otherwise developed any marketable skills. In the Veteran’s February 2021 Application for Increased Compensation Based on Unemployability, the Veteran recounted how his service-connected disabilities have affected his various occupations. The Veteran reported pushing through pain at his job as a bus driver and with the Postal Service. The Veteran stated his disabilities, often his knees, prevented him from working approximately three to five days per month, closer to five towards the end of his employment with the bus service. The Veteran stated that while working with the Postal Service approximately every month there would be a day when he was completely unable to work. The Veteran stated his employment with the bus company ended because the company went out of business, but he was reaching the point where the physical pain was making employment intolerable and he would have quit even if the bus company had not gone out of business due to his disabilities. Moreover, the Veteran has stated he has attempted to obtain employment since he became too disabled to work and attended a number of career fairs, but was unable to find positions that could accommodated his disabilities. Additionally, he applied for, and was offered a position at a Walmart distribution center, but had to resign from the position before he began as the heavy lifting requirements of the job are incompatible with his disabilities. The Veteran states he has not worked in any capacity since 2016, and his degenerative disabilities have only worsened since then. The Board notes June 2019 Vocational Rehabilitation records state the Veteran was working on a temporary basis with USPS in 2019. However, the Veteran clarified in a February 2021 sworn declaration that he was not working in 2019 and the inaccuracy of the rehabilitation notes was likely due to a miscommunication with a counselor. In his November 2015 VA knee examination, the examiner found that the Veteran’s knees did not impact his ability to work. In fact, the examiner noted that the exam was “notable for a lot of overplay” and that the “Veteran gave poor effort,” which limited the accuracy of the exam. Conversely, in his October 2017 knee examination, the examiner found that the Veteran’s bilateral knee disability had progressed since the initial onset of symptoms in October 2004. The examiner noted the Veteran would have difficulty with duties involving kneeling, squatting, prolonged standing, or walking. In a February 2018 lay statement, the Veteran stated he can’t stand for long periods of time, driving his car for more than 25 minutes is difficult, and that his knees buckle and give way. In a March 2021 VA examination for his knee disabilities, the Veteran described moderate flare-ups of the right and left knees occurring weekly and lasting a few hours. The Veteran reported the right knee flare ups are precipitated by prolonged standing or walking. The exam found abnormal range of motion with flexion and extension exhibiting pain in both knees. The examiner stated the Veteran’s diagnosis impacted the Veteran’s ability to perform occupational tasks due to knee pain, limited range of motion, difficulty with prolonged standing more than 30 minutes, walking more than one mile, or climbing more than one flight of stairs. Medical treatment records from March 2017 to October 2020 show consistent complaints of bilateral knee pain, often manifesting with 10/10 pain. Over that time period, the Veteran reported his knees buckling, giving way, and falling. Treatment records show the Veteran was treated with bilateral knee injections on multiple occasions for the pain. Most recently, in October 2020. the Veteran was noted to be experiencing relentless bilateral knee pain interfering with mobility, transfers, activities of daily living and/or sleep. At that time, the treatment record noted that if he went untreated the Veteran would require hospitalization or institutional care; the Veteran was given injections for the pain. Similarly, in his April 2017 back examination, the examiner found that the Veteran is unable to squat or lift heavy objects, as well as sit and stand for long periods of time; and in his October 2017 back examination, it was noted that he would have difficulty with duties involving prolonged standing, twisting, bending, heavy lifting, or extensive walking. In the portion of the March 2021 VA examination pertaining to his thoracolumbar spine disability, the Veteran reported weekly moderate flare ups lasting several days. The Veteran stated the flare ups are precipitated by prolonged sitting, standing, or walking. The Veteran described functional loss resulting in difficulty with heavy lifting and limited range of motion. The examiner found the functional impact of the Veteran’s disability affected his ability to perform occupational tasks as there is back pain with limited range of motion, difficulty with heavy lifting more than 35 pounds, bending, prolonged walking more than 1.5 miles, and standing longer than 60 minutes. Moreover, in his April 2017 hip examination, the examiner concluded that the Veteran is unable to stand, sit, and walk for extended periods of time, and that he was unable to lift heavy objects and squat; however, his October 2017 hip examination found no functional impact. In the March 2021 VA examination, the Veteran reported his right hip strain affecting adduction, abduction, and rotation has become worse over the years. The Veteran reported moderate flare-ups occurring monthly and lasting for several days. The Veteran stated the right hip flare-ups are precipitated by prolonged standing, sitting, or walking. The Veteran reported experiencing functional loss as a result of the hip strain with difficulty standing, walking, or running for long periods of time. The examiner found that the Veteran’s hip condition impacts his ability to perform occupational tasks. The examiner noted the Veteran’s hip pain, limited range of motion, difficulty with prolonged standing more than 30 minutes, walking or light jogging more than one mile, or climbing several flights of stairs. The Veteran was first afforded an examination for PTSD in April 2011. There, the Veteran reported his symptoms began in 2004 as a result of the Iraq war. The Veteran described symptoms of intrusive recollection of the war, anxiety, irritability, and poor sleep. The severity of the symptoms was moderate with constant, continuous, or ongoing frequency. The Veteran indicated the symptoms affected his total daily functioning which resulted in poor adjustment to civilian life. He reported his sleep was slightly improved with medication, did not have a history of violent behavior, and did not indicate a history of suicide attempts. Although the Veteran had not been violent or physically abusive with anyone, his irritability and outbursts of anger were persistent. The Veteran reported avoiding crowds and public places. At the time of the April 2011 exam for PTSD the Veteran had been working for six years at the post office. His stated he found it difficult to relate to his supervisor in the last two or three years, and his relationships with his coworkers were poor, but had not lost any time from work. The April 2011 examiner found the Veteran to be competent mentally. He did not have difficulty performing activities of daily living. The examiner stated the best description of the Veteran’s psychiatric impairment at that time was that his psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although the Veteran is functioning satisfactorily with routine behavior, self care, and normal conversation. More recently, a March 2021 VA examination found the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. At that time PTSD symptoms identified by the VA examiner included anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances including work or a work like setting, obsessional rituals which interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence. The VA examiner found the PTSD symptoms described cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. In light of the Veteran’s occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran’s service-connected disabilities, when considered together, are sufficient to render him unable to obtain and maintain any form of substantially gainful employment. Here, the Veteran’s multiple musculoskeletal disabilities, when considered together, clearly render him unable to engage in any manual labor, to include work that would require him to lift or carry heavy items or to stand or walk for any length of time during a working day. Furthermore, with regard to sedentary employment, the Veteran has not had the education or training necessary to be able to engage in such work, and even if he did, his knee disabilities and PTSD cause significant added limitation to any type of work he may attempt to engage in. The Board is particularly persuaded by the Veteran’s testimony of his consistently worsening pain related to his knees precluding him from prolonged sitting and standing as well as other tasks, such as lifting and driving. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities would also preclude sedentary employment. Accordingly, and resolving all doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.