Citation Nr: 21023141 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-23 437 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective August 2, 2017, is granted. REMANDED Entitlement to a TDIU due to service-connected disabilities prior to August 2, 2017, on an extra-schedular basis, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether, beginning August 2, 2017, the Veteran’s service-connected disabilities render her unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met as of August 2, 2017. 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 in the United States Army from July 1985 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) regional office. In July 2017, the Board remanded this matter for additional development. Thereafter, in a December 2017 decision, the Board denied, inter alia, the Veteran’s appeal of the denial of entitlement to a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 decision, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the issue of entitlement to a TDIU for further proceedings. Specifically, the parties of the JMPR agreed that the Board provided an inadequate statement of reasons or bases for denying entitlement to a TDIU by failing to discuss an August 2014 VA examination reportwhich contained evidence favorable to the Veteran. In an April 2019 decision, the Board again denied the Veteran’s appeal of the denial of entitlement to a TDIU. The Veteran appealed the Board’s decision to the Court. In a May 2020 decision, the Court granted a Joint Motion for Remand (JMR) and remanded the issue of entitlement to a TDIU for further proceedings. The parties of the JMR agreed that the Board provided an inadequate statement of reasons or bases for denying entitlement to a TDIU. Specifically, the parties agreed that: the Board’s determination that a November 2018 private vocational opinion was factually inaccurate; the Board failed to explain why it found the Veteran’s prior administrative work relevant to the 2018 expert’s opinion that she lacks the physical capacity to perform sedentary work; and the Board failed to explain why it concluded the vocational expert’s review of the claims file and telephone interview with the Veteran were insufficient to provide the necessary facts and data to form a conclusion. As an initial matter, the Board notes that a claim for a TDIU is a form of increased rating claim, and as such, the rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413 (1999). Therefore, the relevant temporal focus for this matter begins March 10, 2008, or one year prior to the date of receipt of the claim of entitlement to a TDIU. See 38 C.F.R. § 3.400; March 2009 Informal Claim. Entitlement to a TDIU due to service-connected disabilities, effective August 2, 2017, is granted. Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more, or, if the veteran has multiple service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Further, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extraschedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The term “unable to secure or follow a substantially gainful occupation” contains economic and noneconomic components. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention is given to: the veteran’s history, education, skill, and training; the veteran’s physical ability to perform the types of activities required by the occupation at issue; and the veteran’s mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factual Background. In March 2009, the Veteran submitted an informal claim for a TDIU. See March 2009 Informal Claim. In April 2009, the Veteran asserted that she last worked in December 2002, in an assembly role, with a temporary agency. She also asserted that her employment ended because she was unable to stand for a long period of time. See April 2009 VA Form 21-4192; April 2009 VA Form 21-8940. In May 2009, the Veteran was afforded a VA examination in which the examiner noted that she wore a brace on her right knee and that her right knee condition was aggravated by standing for 30 minutes, walking four blocks, lifting ten pounds, going up and down stairs, or driving over 45 minutes. The examiner also noted that her right ring finger is tender and that her grip is reduced, which results in dropping objects and reduced written legibility. The examiner further noted that, due to her bilateral foot calluses, the Veteran periodically soaks her feet in warm water and sands the calluses off. Ultimately, the examiner concluded, without elaboration, that the Veteran’s service-connected calluses, right knee condition, and right ring finger condition would not render her unemployable. See May 2009 VA General Medical Examination. In October 2009, the Veteran was afforded VA examinations regarding her service-connected conditions. With respect to the Veteran’s hysterectomy, the examiner noted that the condition manifested with abnormal bleeding, vaginal discharge, and abdominal pain, resulting in mild to moderate impairment to her usual occupation and daily activities. With respect to the Veteran’s right ring finger condition, the examiner noted that the condition manifested with pain, weakness, and stiffness, resulting in moderate impairment to her usual occupation and daily activities. The examiner also noted that the Veteran experienced flare-ups of her right ring finger condition several times a week, manifesting with increased pain, stiffness, and weakness, and resulting in severe impairment to her usual occupation and daily activities. With respect to the Veteran’s right knee condition, the Veteran reported experiencing pain, weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatigability, and lack of endurance. The examiner noted that the Veteran utilized a cane and wore a knee brace, and that her right knee condition resulted in moderate to severe impairment to both her ability to stand and walk and her usual occupation and daily activities. The examiner also noted that the Veteran experienced flare-ups of her right knee condition several times a week, manifesting with increased pain, stiffness, and swelling, and resulting in severe impairment to her usual occupation and daily activities. See October 2009 VA Gynecological Conditions Examination; October 2009 VA Hand, Thumb, and Fingers Examination; October 2009 VA Joints/Knee Examination. In January 2011, the Veteran underwent a VA examination regarding the severity of her right ring finger condition. In this examination, the Veteran reported that she experienced finger pain, heat, redness, difficulty gripping small objects, and that she sometimes dropped objects. The examiner noted that the condition did not impact the Veteran’s work as she was not working. See January 2011 VA Examination. In April 2012, the Veteran was afforded VA examinations regarding her service-connected conditions, in which the examiner concluded that the Veteran’s right ring finger condition and bilateral foot calluses did not impact her ability work, but that, due to her right knee condition, she was unable to engage in employment to required prolonged standing, walking, squatting, kneeling, or recurrent climbing stairs. The examiner concluded that the Veteran was able to engage in sitting sedentary employment. See April 2012 VA General Medical Disability Benefits Questionnaire (DBQ); April 2012 VA Hand and Finger Conditions DBQ; April 2012 VA Knee and Lower Leg Conditions DBQ; April 2012 VA Foot Conditions DBQ. In July 2014, the Veteran asserted that she last worked in 2004, in an assembly line role. She also asserted that her prior jobs have all required a great deal of standing and rapid arm movement. See July 2014 VA Form 21-8940. In August 2014, the Veteran was afforded a VA examination, regarding her service-connected right ring finger condition, in which she reported experiencing pain, swelling, redness, decreased grip strength. She also reported experiencing flare-ups, approximately three times per week, resulting in severe pain, swelling, and redness. Ultimately, the examiner concluded that the Veteran’s right ring finger condition impacted her ability to work, noting that the Veteran reported difficulty with personal grooming, grip strength, cooking, and cleaning her house, and that she required help to do shopping. See August 2014 VA Hand and Finger Conditions DBQ. In August 2017, the Veteran was afforded a VA examination, regarding her right knee condition, in which she reported an inability to squat or kneel, locking, swelling, and pain that increased with standing and walking. The examiner noted that the Veteran utilized both a cane and knee brace. Ultimately, the examiner concluded that the Veteran’s right knee condition limited her to engaging in sedentary, sitting employment, noting that she was unable to stand or walk for prolonged periods. See August 2017 VA Knee and Lower Leg Conditions DBQ. In December 2018, the Veteran reported that, due to her right knee condition, she used a cane, walker, or knee brace daily, but that as she had fallen multiple times, she used the walker as much as possible. She also reported that, as she could only stand for approximately six minutes at a time and sit for approximately ten minutes at a time, she spent the majority of the time laying down. With respect to her right ring finger condition, the Veteran reported that she was unable to grasp anything weighing more than one pound, and typically dropped objects due to an inability to keep her hand closed for more than one minute. She also reported experiencing difficulty getting dressed and tying her shoes. The Veteran further reported that, when employed, she had to take approximately six unscheduled breaks per shift due to pain and instability in her right knee, frequently left work early due to pain, and that she frequently dropped objects on the assembly line. See December 2018 Affidavit. In December 2018, the Veteran submitted an opinion from F. Fazzolari, a private vocational consultant, who opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment due to her service-connected right knee and right ring finger conditions. In support of this opinion, the consultant stated that the Veteran’s prior vocation was identified as an assembler, which is considered unskilled work with no transferrable skills. The consultant also stated that, due to pain from the Veteran’s right knee and right ring finger conditions, the Veteran would experience interruption in concentration. The consultant further noted that the Veteran has reported that, when she was employed, she had to take frequent unscheduled breaks or leave work early due to pain from her conditions. The examiner stated that such interruption in concentration, coupled with the need to take frequent breaks and leave early due to pain, would result in a significant amount off tasks and reduce work productivity, which would not be tolerated by any employer. It was also reported that the consultant also noted that the Veteran suffered from chronic fatigue from interrupted sleep due to her service-connected disabilities, which caused difficulty with attention and concentration, which means she would have difficulty completing work tasks in a timely and effective manner. The consultant further stated that sedentary employment is defined as exerting up to ten pounds of force up to one-third of the time, a negligible amount of force frequently, and involves sitting most of the time, but may involve walking or standing up to one-third of the time. The consultant opined that the Veteran would be unable to meet such physical requirements due to her service-connected conditions. In support of this opinion, the consultant noted that the Veteran’s medical records indicated that she was unable to sit for more than approximately ten minutes, walk for more than half a block (at a slow pace with the constant use of either a cane or walker), or stand for more than approximately six minutes. See December 2018 Private Opinion. Analysis. The Veteran contends that she is entitled to a TDIU due to her service-connected disabilities. As discussed above, a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more, or, if the veteran has multiple service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, throughout the appeal period the Veteran has received benefits for: transabdominal hysterectomy with bilateral salpingo-oophorectomy (hysterectomy), rated at 50 percent; right knee painful motion (right knee condition), rated at 10 percent; abdominal scar from hysterectomy, rated as noncompensable, and bilateral plantar calluses, rated as noncompensable. The Veteran has also received benefits for right medial collateral ligament strain, rated at 10 percent prior to August 2, 2017, and at 20 percent thereafter. Additionally, the Veteran has received benefits for a right ring finger condition, rated at 10 percent under diagnostic code (DC) 5230-5003 prior to October 22, 2012, and at 10 percent under DC 5003-5229 thereafter. The Veteran’s combined rating is 60 percent prior to August 2, 2017, and 70 percent thereafter. Therefore, the schedular threshold requirement for establishing entitlement to a TDIU has been met for the period beginning August 2, 2017. See 38 C.F.R, § 4.16(a). The period prior to August 2, 2017 is discussed in the remand section below. As noted above, in an August 2014 VA examination, the Veteran reported experiencing pain, swelling, redness, decreased grip strength. She also reported experiencing flare-ups, approximately three times per week, that resulting in severe pain, swelling, and redness. Ultimately, the examiner concluded that the Veteran’s right ring finger condition impacted her ability to work, noting that the Veteran reported difficulty with personal grooming, grip strength, cooking, and cleaning her house, and that she required help to do shopping. See August 2014 VA Hand and Finger Conditions DBQ. Additionally, in an August 2017 VA examination report, the Veteran reported that her right knee condition manifested with an inability to squat or kneel, locking, swelling, and pain that increased with standing and walking. The examiner noted that the Veteran utilized both a cane and knee brace. Ultimately, the examiner concluded that the Veteran’s right knee condition limited her to engaging in sedentary, sitting employment, noting that she was unable to stand or walk for prolonged periods. See August 2017 VA Knee and Lower Leg Conditions DBQ. Though the medical evidence of record suggests that the Veteran’s service-connected conditions do not preclude sedentary, sitting employment, the Board must also consider the Veteran’s education, training, and work experience when determining whether TDIU is warranted. See Hatlestad v. Derwinski, supra. Here, the Veteran submitted an opinion from F. Fazzolari, a private vocational consultant, who opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment due to her service-connected right knee and right ring finger conditions. In support of this opinion, the consultant stated that the Veteran’s prior vocational was identified as an assembler, which is considered unskilled work with no transferrable skills. The consultant also stated that, due to pain from the Veteran’s right knee and right ring finger conditions, the Veteran would experience interruption in concentration. The consultant further noted that the Veteran has reported that, when she was employed, she had to take frequent unscheduled breaks or leave work early due to pain from her conditions. The examiner stated that such interruption in concentration, coupled with the need to take frequent breaks and leave early due to pain, would result in a significant amount of time off task and reduce work productivity, which would not be tolerated by any employer. The consultant also noted that the Veteran suffered from chronic fatigue from interrupted sleep due to her service-connected disabilities, which caused difficulty with attention and concentration, which means she would have difficulty completing work tasks in a timely and effective manner. See December 2018 Private Opinion. The consultant also disagreed with the VA examiner’s determination that the Veteran was capable of performing sedentary employment, noting that sedentary employment is defined as exerting up to ten pounds of force up to one-third of the time, a negligible amount of force frequently, and involves sitting most of the time, but may involve walking or standing up to one-third of the time. The consultant opined that the Veteran would be unable to meet such physical requirements due to her service-connected conditions. In support of this opinion, the consultant noted that the Veteran’s medical records indicated that she was unable to sit for more than approximately ten minutes, walk for more than half a block (at a slow pace with the constant use of either a cane or walker), or stand for more than approximately six minutes. See id. Further, the evidence indicates that the Veteran is a high school graduate who has completed one year of college, she has no specialized training, and her previous work experience is as an assembly line worker. See July 2014 VA Form 21-8940. Based on the above, the Board finds the evidence of record overall supports the finding that the Veteran’s service-connected conditions render her unable to secure or follow a substantially gainful occupation, at least to an evidentiary degree of equipoise. Accordingly, the Board resolves all reasonable doubt in the Veteran’s favor, and finds entitlement to TDIU to be warranted, effective August 2, 2017. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities prior to August 2, 2017, on an extra-schedular basis, is remanded. The Board regrets the delay associated with this remand, particularly given the procedural history. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. As discussed above, prior to August 2, 2017, the Veteran’s service-connected disabilities have a combined rating of 60 percent. Therefore, prior to such date, the schedular percentage threshold for TDIU have not been met. See 38 C.F.R. § 4.16(a). However, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extra-schedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Although the Board cannot grant a TDIU in the first instance under this regulation, the Board must consider whether referral to the Director of Compensation and Pension Service (Director) for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As discussed above, in evaluating a veteran’s employability, consideration may be given to their level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. Here, the evidence indicates that the Veteran is a high school graduate who has completed one year of college, she has no specialized training, and her previous work experience is an assembly line worker. See July 2014 VA Form 21-8940. Additionally, the Veteran has been afforded several VA examinations regarding her service-connected disabilities which have concluded that such conditions impact her ability to work, though to varying degrees. See May 2009 VA General Medical Examination; October 2009 VA Gynecological Conditions Examination; October 2009 VA Hand, Thumb, and Fingers Examination; October 2009 VA Joints/Knee Examination; January 2011 VA Examination; April 2012 VA General Medical DBQ; April 2012 VA Hand and Finger Conditions DBQ; April 2012 VA Knee and Lower Leg Conditions DBQ; April 2012 VA Foot Conditions DBQ; August 2014 VA Hand and Finger Conditions DBQ. Based on the evidence above, the Board finds that the Veteran’s ability to obtain and maintain substantially gainful employment, prior to August 2, 2017, may have been impacted by her service-connected disabilities. As such, a remand is necessary for referral to the Director for consideration as to whether a TDIU is warranted, on an extra-schedular basis, prior to August 2, 2017. Accordingly, the matter is REMANDED for the following action: Refer to the Director, Compensation and Pension Service, the matter of whether a TDIU is warranted, prior to August 2, 2017, on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b). Should the Director indicate that further evidentiary development is required, such development should be undertaken. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.