Citation Nr: 21023102 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-39 776 DATE: April 20, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from September 18, 2013. REMANDED Entitlement to a TDIU prior to September 18, 2013 is remanded. FINDING OF FACT From September 18, 2013, the Veteran has had a combined disability rating of at least 70 percent with one disability rated as at least 40 percent disabling, and he is rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met from September 18, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from May 1999 to August 2003, and is the recipient of a Combat Action Ribbon for service in Iraq. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2017 Board hearing before a Veterans Law Judge who is no longer at the Board. A transcript of the hearing is associated with the claims folder. The Veteran was offered the opportunity to testify at a second Board hearing, but he declined a second hearing by way of correspondence received in March 2021. In March 2019, the Board remanded the TDIU claim for further development. The development requested having been completed, the case is now appropriate for appellate review. 1. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from September 18, 2013. The Veteran contends that he is entitled to a TDIU due to the impairment caused by his service-connected disabilities. In an August 2013 letter, the Veteran stated that he is unable to maintain employment, explaining that he is always on high alert and experienced flashbacks. In 2005, he experienced a flashback and believed he was being taken prisoner in Iraq; consequently, he assaulted multiple police officers. He stated he was easily angered, isolated himself, had anxiety attacks, depression, and night terrors. He stated he had worked odd jobs here and there, but that his employment never lasted more than 3 to 4 months, and that he was receiving Social Security Disability (SSD) benefits. For the reasons discussed below, the Board agrees that the criteria for an award of a TDIU have been met from September 18, 2013. 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. 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). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a “living wage.” See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In this case, the Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling from September 18, 2013, and as 70 percent disabling from January 26, 2016; migraines, evaluated as 50 percent disabling from October 1, 2019; tinnitus, evaluated as 10 percent disabling from August 20, 2003; degenerative joint disease and patellofemoral syndrome with tendonitis of the left knee, status post arthroscopic surgery, evaluated as 10 percent disabling from August 20, 2003; left knee instability, evaluated as 30 percent disabling from September 17, 2011 to January 12, 2012, as 100 percent disabling from January 13, 2012 to March 31, 2012, 30 percent disabling from April 1, 2012 to October 3, 2019, and 10 percent disabling from October 4, 2019; left knee limitation of flexion, evaluated as 10 percent disabling from October 4, 2019; and left knee scar, evaluated as noncompensably disabling. For the period on appeal prior to September 18, 2013, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are not met because the Veteran did not have a single service-connected disability rated at least 60 percent; or a combined disability rating of at least 70 percent with one single service connected disability rated as at least 40 percent. The issue of entitlement to a TDIU on an extra- schedular basis under 38 C.F.R. § 4.16(b) prior to September 18, 2013, is discussed in the remand portion of this decision. However, from September 18, 2013, the Board finds that the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are met because he has a combined disability rating of at least 70 percent with a single service-connected disability rated at least 40 percent (PTSD, and, from October 1, 2019, migraines). Moreover, after a review of all the evidence, the Board concludes that the evidence is at least in equipoise as to whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. A March 2011 Social Security Administration (SSA) Disability Determination and Transmittal indicates that the Veteran was awarded Social Security Disability benefits effective from March 1, 2010 due to a primary diagnosis of anxiety disorder. The evidence shows that throughout the period on appeal, the Veteran has had intermittent periods of employment. In a November 2011 letter, he stated that he was unable to hold and keep a job due to his left knee disability as well as asthma, sleep apnea, and strokes. He stated that the last time he held a full-time job was August 2010. On his August 2013 VA Form 21-8940, he indicated that from July 2012 to March 2013, he worked full-time as a supervisor, and from May 2013 to the present, he had worked as a house cleaner with variable hours. On a November 2013 VA Form 21-8940, he indicated that the job as a housekeeper had ended in September 2013. On an August 2016 VA Form 21-8940, he stated that he had last worked full-time in April 2016. VA treatment records also show sporadic periods of employment. In December 2010, the Veteran stated he had recently completed real estate training but was not looking for work “until I get my health problems under control,” and was currently unemployed. He had worked as a clerk for the Census Bureau for one month but quit after experiencing problems with his health. In September 2011, he was volunteering 2 days a week at a hospital in the hopes that it would lead to employment. At a November 2011 VA mental disorders examination, the Veteran stated he had not been able to find a job, and that he would have a hard time not being in a supervisory position because he was used to being in such a position in the military. In September 2014, the Veteran was working full-time at a grilled cheese truck. In November 2014, it was noted that he was working in a light duty capacity, and in January 2015, he was no longer employed. An April 2015 VA treatment note indicates that the Veteran was transferring to Phoenix for “a job” working in a warehouse. In January 2016, the Veteran reported that he was self-employed as a driver for Uber. At the February 2017 Board hearing, the Veteran testified that he last worked in February 2016 for Uber. In January 2019, it was noted that the Veteran was working at a sandwich shop. In a January 2020 letter, the Veteran stated that he had to cut his work hours due to health issues, including PTSD, and that he was planning on an early retirement. In sum, the Veteran has held various jobs for short periods throughout the period on appeal but has been unable to maintain a job for any significant period of time due to his service-connected disabilities. Moreover, the medical evidence of record shows significant occupational impairment due to his service-connected disabilities. For instance, a March 2015 VA treatment note indicates that the Veteran was currently not working and no longer driving trucks due to medical and psychiatric symptoms, physical restrictions such as OSA requiring use of a c-pap, depression/anger/PTSD, and inability to tolerate other people/workplace environment. A September 2015 VA PTSD examination report indicates that the Veteran, due to his PTSD, would experience occupational and social impairment with reduced reliability and productivity, and that he would have difficulty in adapting to stressful circumstances, including work or a worklike setting. A November 2015 VA knee examination report indicates that the Veteran would not be able to do any work that involved running or extensive stair climbing. He used a left knee brace regularly for ambulation. A March 2016 VA treatment note indicates that the Veteran only had 15 headache-free days every month. He experienced very severe migraines 2 to 3 times per year, and “normal” migraines, during which he had to stay in a dark room and sleep, approximately 7 to 8 times per month. A March 2018 VA knee examination report indicates that the Veteran would have difficulty with strenuous jobs involving repetitive carrying, lifting, and pushing, and repetitive or excessive walking. He was not able to run and would also have difficulty with frequent kneeling and squatting on the left leg/knee. In December 2018, the Veteran discussed frustration with his current employment as a delivery driver, stating that he did not believe it would last due to his difficulty coping with stress and the work environment, and that, “I can’t deal with stupid people.” However, the clinician noted that the Veteran indicated a desire to work despite difficulty maintaining employment due to PTSD symptoms. An October 2019 VA knee examination report indicates that the Veteran could not kneel, bend, or squat, could not run, and could not stand or walk for long periods of time. At an October 2019 VA PTSD examination, the examiner assessed occupational and social impairment with reduced reliability and productivity due to PTSD symptoms. Since his last evaluation, the Veteran worked at a sandwich shop for 6 to 7 months in 2017 to 2018, but left that job, “Because of how management was running it, breaking rules.” He then worked for Sonic for 1.5 months but had to quit because he was getting a heat rash from the deep fryer. This job ended in August 2018. Since then, he had been working as a parts delivery driver for a Ford dealership 3 to 4 days per week. At an October 2019 VA headaches examination, the Veteran reported being very irritable and not productive when he had headaches due to pain. The examiner stated that he would need to take breaks at work when headache pain set in. In December 2019, VA opinions were obtained with regard to the impact each service-connected disability would have on ability to perform occupational tasks. With regard to the left knee disability, the examiner reviewed the VA examination reports pertaining to each disability, and noted that, regarding the left knee disability, construction jobs which included actions such as kneeling and bending would be difficult. In addition, being a UPS/Fed Ex delivery driver would be difficult with climbing in and out of stairs and sitting for long periods. The Veteran would not be precluded from independent office work, home office work, or sitting in an office such an occupation requiring data entry. With regard to the Veteran’s tinnitus, in a December 2019 report, an audiologist acknowledged that there were circumstances where the nature and intensity of the Veteran’s tinnitus would affect his work environment. For example, if he were working in a work environment where it was completely quiet, the intensity of his tinnitus could rise to a level at which the Veteran would not be able to understand what someone was saying to him due to it overpowering the person speaking. Additionally, if he wore hearing protection, occluding his ear canals could lead to the same effects. However, the examiner stated that the tinnitus alone did not seem to functionally render the Veteran unemployable, citing to his intermittent periods of employment. It is clear based on the above, as well as the combined disability rating of at least 70 percent in effect since September 18, 2013, that the Veteran has significant occupational impairment due to his service-connected disabilities. The Board acknowledges, as discussed above, that the Veteran has held various jobs for short periods of time throughout the period on appeal but finds that such employment does not constitute substantially gainful employment. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran is unable to secure and maintain gainful employment due to his service-connected disabilities. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met from September 18, 2013. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a TDIU prior to September 18, 2013 is remanded. As discussed above, prior to September 18, 2013, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) were not met. However, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities have rendered a veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). Prior to September 18, 2013, as outlined above, the Veteran’s compensable service-connected disabilities consisted of tinnitus, left knee degenerative joint disease, and left knee instability. An October 2011 private treatment note indicates that the Veteran reported chronic left knee pain and was walking with a cane; walking made the pain worse. A November 2011 buddy statement from M.S., who had known the Veteran since 2007, stated that the Veteran had been walking with a cane since late 2007 or early 2008. The Veteran underwent left knee surgery in January 2012. A February 2012 VA knee examiner noted that his left leg was in a full cast and stated that currently, the Veteran could not perform either physical or sedentary work, and that he would be unable to do so for an additional 6 months to one year following cast removal. At an October 2012 VA knee examination, the Veteran stated he needed to be careful with gait and balance. He favored using the elevator, and if he had to use the stairs, he held on to the side of the wall. He was unable to climb more than one flight of stairs at a time. He would not use a ladder. He was unable to walk more than 2 miles. Based on the above, the Board finds that there is some evidence suggesting that the Veteran’s service-connected disabilities, primarily the left knee disability, may have rendered him unable to secure and follow substantially gainful employment prior to September 18, 2013. Thus, the issue of entitlement to a TDIU prior to September 18, 2013, is remanded for referral to the Under Secretary for Benefits or the Director of the Compensation Service in accordance with 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the Veteran’s TDIU claim to the Director of the Compensation Service for consideration of entitlement to a TDIU prior to September 18, 2013, under 38 C.F.R. § 4.16(b). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.