Citation Nr: 21023533 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-25 864 DATE: April 20, 2021 ORDER From June 12, 2011 to October 19, 2015, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT From June 12, 2011 to October 19, 2015, the Veteran was unable to follow (maintain) substantially gainful employment as a result of the service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, from June 12, 2011 to October 19, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active duty service from September 1968 to September 1970. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant case has been before the Board of Veterans’ Appeals (Board) previously. In the most recent August 2019 Board decision, a TDIU from October 19, 2015 was granted, as the combined rating requirements of 38 C.F.R. § 4.16(a) were met. The issue of entitlement to a TDIU prior to October 19, 2015, was remanded for a referral to the Director of Compensation and Pension Service for 38 C.F.R. § 4.16(b) consideration. That referral occurred and the Director of Compensation and Pension Service recommended against a grant of a TDIU. As the RO has substantially complied with the requirements of the remand and has procured the recommendation, the case is ripe for adjudication of a TDIU prior to October 19, 2015. See Stegall v. West, 11 Vet. App. 268 (1998). The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. TDIU Legal Authority 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). 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). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical question, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the VA adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). A TDIU from June 12, 2011 to October 19, 2015 After a review of all the evidence, lay and medical, the Board finds that a TDIU from June 12, 2011 to October 19, 2015 is warranted. The TDIU claim form (VA Form 21-8940) was first filed on September 27, 2011. That claim form stated that the Veteran had last worked on June 11, 2011. Accordingly, the Board finds that entitlement to a TDIU arose as of June 12, 2011, the first day that the Veteran was not pursuing substantially gainful employment. See 38 C.F.R. § 3.400(o) (providing that VA can look back for up to one year prior to the date of claim for increase to see if entitlement arose during that one-year period). As of June 12, 2011, the Veteran was service connected for posttraumatic stress disorder (PTSD) at 30 percent, tinea versicolor at 30 percent, instability of the left knee at 10 percent, and left knee strain, chondromalacia, and degenerative joint disease at 10 percent, for a total combined 60 percent disability rating. As of September 28, 2014, the Veteran was service connected for PTSD at 30 percent, tinea versicolor at 30 percent, instability of the left knee at 10 percent, left knee strain, chondromalacia, and degenerative joint disease at 10 percent, diabetes mellitus type 2 at 10 percent, glaucoma at 10 percent, hypertension at 10 percent, and a voiding dysfunction at 10 percent, for a total combined 70 percent disability rating. There are a variety of potentially relevant factors in order to determine whether a veteran can secure (obtain) and follow (maintain) a substantially gainful occupation under 38 C.F.R. § 4.16: (1) the veteran’s history, education, skill, and training, (2) whether the veteran has the physical ability (both exertional and non exertional) to perform the type of activities required by the occupation at issue, including limitations in lifting, bending, sitting, and other similar activities, and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including difficulty concerning memory, concentration, ability to adapt to change, ability to handle work place stress, ability to get along with coworkers, and ability to demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Concerning the Veteran’s history, education, skill, and training, the Veteran has a high school education as of 1966 and performed factory work until he was drafted into service in September 1968. See October 2015 VA PTSD Examination. The Veteran served two years as an infantryman, experiencing combat in Vietnam as part of his responsibilities. Id. Although he went to cosmetology school briefly after returning from Vietnam, he started working in the manufacturing business as a machine operator shortly thereafter, and stayed until he took early retirement in June 2011 because of difficulty with the knees. See March 2010 VA PTSD Examination (describing his work history); VA Form 21-8940 (providing that he worked for a plastics company in manufacturing since 1988). In short, his education and experience involved manual labor and physically demanding positions. He does not have job experience that would transfer to a desk or office job. Although the Director of Compensation and Pension Service suggested that the Veteran should have pursued sedentary employment, the evidence does not support the suggestion that he would be qualified for and/or could train for such employment. The Veteran is trained in the manufacturing business. Physically, the most pronounced disability is the Veteran’s left knee (arthritic pain and instability). The Veteran reported in the October 2015 VA PTSD Examination that the reason he took early retirement was that he tore a ligament in his left knee that would swell, and he could not stand and take off of work. In the October 2015 VA Knee Examination, the Veteran stated that he took early retirement to avoid having to stand on the legs all day. He noted that he was having a lot of pain and weakness. In a February 2010 VA Knee Examination, the Veteran stated that the functional impact of his knee disability was that he could not perform his work related duties to the best of his ability, could not work additional hours at work, and could not walk the recommended distance by his physician for the high cholesterol and hypertension. The record reflects that the Veteran’s left knee causes significant pain and instability, leading to unemployability in the manufacturing business. Beyond the knee, the Veteran is service connected for a few other disabilities. His skin disability (tinea versicolor) was not noted to have a functional impact. The Veteran is service connected for diabetes and the Veteran noted previously that the diabetes had caused him to lose weight and keeps him feeling tired all of the time. See April 2014 Statement in Support of Claim. The glaucoma, hypertension, and voiding dysfunction are not noted to have employment-related impacts. In summary, the left knee causes the greatest physical disability and is largely the reason why the Veteran left his job, although the diabetes also causes fatigue. Mentally, the Veteran is service connected for PTSD. His symptomatology as of a March 2010 VA PTSD Examination included depressed mood, difficulty falling asleep, difficulty staying asleep, nightmares, night sweats, memory problems, poor concentration, hypervigilance, irritability, and social withdrawal. The symptoms were reported to be constant. They impact daily functioning, which result in problems with following work procedures and difficulty getting along with others. The impact included frequent conflict and disagreement with others, and feeling a need to stay by himself. In summary, the Veteran experiences difficulty with occupational tasks (problems following work procedures) and with the psychological demands of the job (problems interacting with others and desire to isolate). This supports the claim that a TDIU is appropriate. Resolving reasonable doubt in the Veteran’s favor, a review of the record demonstrates that a TDIU is warranted from the day after the Veteran’s last day of full-time employment through the day that a TDIU was previously granted, as the Veteran is unable to maintain work in the manufacturing field in which he was trained, in part due to physical disability and in part due to mental disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board grants a TDIU from June 12, 2011 to October 19, 2015. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.