Citation Nr: 21023886 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-24 674A DATE: April 21, 2021 ORDER From June 28, 2011, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT From June 28, 2011, the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW From June 28, 2011, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities 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 honorably served on active duty in the United States Marine Corps from November 1984 to November 1988 from February 1991 to March 1991 This case comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded the issues of service connection for bilateral hearing loss, service connection for a psychiatric disability, service connection for sleep apnea, and entitlement to a TDIU for further development. In an August 2020 rating decision, the RO, in pertinent part, granted service connection for an acquired psychiatric disorder, service connection for bilateral hearing loss, and service connection for sleep apnea. Therefore, these issues are no longer on appeal. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), “Marginal employment shall not be considered substantially gainful employment.” Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a fact-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities, or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, 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. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In May 2019, the United States Court of Appeals for Veterans Claims (Court) held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran’s history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue; and 3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). In Ray v. Wilkie, the Court explained that substantially gainful employment 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. The Veteran’s service-connected disabilities include: (1) acquired psychiatric disorder diagnosed as major depressive disorder rated at 70 percent from June 28, 2011; (2) sleep apnea rated at 50 percent from December 11, 2011; (3) peripheral neuropathy of the upper right extremity associated with fracture of right elbow with degenerative joint disease and deformity of the proximal radius with missing radial head (major) rated at 50 percent from May 8, 2017; (4) fracture of right elbow with degenerative joint disease and deformity of the proximal radius with missing radial head (major) rated at 20 percent from January 30, 1998; (5) bilateral hearing loss rated at 20 percent from June 28, 2011; (6) fracture of the right elbow with degenerative joint disease and limitation of pronation and supination rated at 10 percent from June 28, 2011 and 20 percent from May 8, 2017; (7) tinnitus rated at 0 percent from June 28, 2011; and (8) scar, residuals of right elbow surgery rated at 0 percent from June 28, 2011. The Veteran’s combined evaluation for compensation percentage meets the requirements under 38 C.F.R. § 4.16(a). Yet, the Board must still determine whether the Veteran’s service-connected disabilities preclude him from sustaining a substantially gainful occupation. In December 2020, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (application for a TDIU). On the application, the Veteran reported that all of his service-connected disabilities prevented him from securing or following substantially gainful employment. The Veteran last worked full-time on April 27, 2011. He worked for a retail corporation as a truck driver from December 2010 to April 2011. In October 2013, he started working part-time with accommodations for a transportation company as a parts runner. He averaged 4 hours a day or 20 hours a week. He was not able to fully work this schedule and missed work repeatedly due to his service-connected disabilities. At this position, he earned $250 per week or $1000 per month. However, this was often less because he missed days due to his service-connected disabilities. The Veteran graduated from high school. He took college courses, but he did not earn a degree. In September 2019, the Veteran was afforded VA examinations for his psychiatric disorder, bilateral hearing loss, and ulnar and radial neuropathy. The VA examiner concluded that the Veteran’s service-connected psychiatric disorder 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 Veteran’s bilateral hearing loss affected his ability to hear. He had trouble hearing background noise. He needed the volume of the TV, radio, and phone turned up loud. The Veteran’s neuropathy would severely limit the Veteran’s ability to be gainfully employed in a physical/labor type job, or any job requiring extensive use of his dominant right arm/hand. In May 2018, the Veteran submitted a disability benefits questionnaire (DBQ) for mental disorders from a private practice psychologist/consultant, dated October 2016. The private psychologist diagnosed the Veteran with recurrent/moderate major depressive disorder. The psychologist concluded that the Veteran’s psychiatric disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships, suicidal ideation, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. The Veteran had assistance with performing daily living tasks. His current wife shopped for food, prepared meals, maintained the household chores, and managed the finances. His wife had to remind the Veteran to shower and shave; he showered every two to three days. The psychologist believed that his psychiatric disorder and social impairment were emotionally debilitating and caused an inability to maintain a job. The psychologist concluded that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his major depressive disorder. The Veteran’s service-connected fracture right elbow with degenerative joint disease and deformity of proximal radius and fracture right elbow with degenerative joint disease and limitation of supination more likely than not caused his major depressive disorder and prevented him from maintaining substantially gainful employment. In May 2018, the Veteran also submitted a private DBQ for sleep apnea, dated January 2017, from Dr. H.S. Dr. H.S. noted that the Veteran had been diagnosed with obstructive sleep apnea as of December 2011. The Veteran had poor sleep efficiency and poor tolerance of his CPAP. The Veteran’s inability to use the CPAP as prescribed caused him to be excessively sleepy during the day and required him to take a nap. Dr. H.S. concluded that this further aggravated the Veteran’s psychiatric symptoms, which made the symptoms worse. In September 2017, the Veteran was afforded a VA examination for peripheral nerve conditions. He was diagnosed with ulnar and radial neuropathy. The Veteran continued with pain in the right elbow and pain in the right hand with numbness and tingling. He also got a burning sensation from the elbow down. He was limited with lifting, and he would drop cups. The Veteran had severe numbness, pain, and paresthesias and/or dysesthesias. He had moderate constant pain. The VA examiner concluded that the Veteran’s disorder impacted his ability to be employed. The VA examiner opined that the Veteran would be severely limited with being gainfully employed in a physical/labor type job, or any job requiring extensive use of his dominant arm/hand. In May 2017, the Veteran was also afforded a VA examination for his service-connected fractured right elbow. The Veteran reported that he often dropped things lifted by his right hand. He experienced paresthesias and numbness of his right hand. In a February 2012 VA mental health note, the Veteran reported that he was not mentally able to go to work or deal with everything happening in his life. He reported that he felt depressed, and he had been isolating. He endorsed irritability and anger, especially in crowds. Based on the foregoing, the Board finds that the Veteran is entitled to a TDIU for the entire period on appeal from June 28, 2011. From October 2013 to present, the Veteran worked part-time with accommodations as a parts runner at a transportation company. The Veteran noted that he missed work repeatedly due to his service-connected disabilities. He also made about $1000 per month or less. The Board finds that this employment is not substantial gainful employment because he had accommodations while he worked and missed work often due to his service-connected disabilities. The fact that the Veteran had accommodations due to his service-connected disabilities means that the Veteran worked in a protected environment, thus rendering him only marginally employed. The combined effects of the Veteran’s service-connected disabilities prevent him from pursuing substantially gainful employment in the field where he had the most work experience, which was in transportation as a truck driver. The Veteran’s service-connected acquired psychiatric disorder caused the Veteran to have depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships, suicidal ideation, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. In an October 2016 DBQ, the Veteran’s psychologist concluded that the Veteran’s acquired psychiatric disorder and social impairment were emotionally debilitating and caused an inability to maintain a job. The psychologist determined that the Veteran could not sustain stress from a competitive work environment or be expected to engage in gainful activity due to his major depressive disorder. On his January 2017 DBQ for sleep apnea, the private physician noted that the Veteran’s service connected sleep apnea caused the Veteran to be excessively sleepy during the day and required him to take a nap. Additionally, the September 2017 VA examiner noted that the Veteran’s peripheral neuropathy/fracture of the right elbow limited his ability to lift due to severe pain, numbness, and paresthesias/dysesthesias. The September 2017 VA examiner concluded that the Veteran would be severely limited with being gainfully employed in a physical/labor type job, or any job requiring extensive use of his dominant arm/hand. Further, the Veteran’s service-connected bilateral hearing loss made it difficult for him to hear. See September 2019 VA examiner. All of these disabilities combined would severely limit the Veteran’s functioning in a work environment, especially in an environment where the Veteran would have to work as a truck driver for a transportation company. The Board has considered the Veteran’s lay statements and medical records and has concluded that the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities prevent him from maintaining a substantially gainful employment. Therefore, entitlement to a TDIU is granted for the entire appeal period. Before concluding, the Board must note that it remanded this issue in February 2018; the Veteran was represented by the same counsel then as he is now. Despite that remand, the Veteran’s attorney waited until December 2020, after the RO had completed all of its development and recertified this case to the Board, to submit any evidence or argument in support of this particular claim. Had the Veteran’s attorney exercised greater diligence, the RO could have developed it and perhaps granted the claim at an earlier stage. Alas, he did not, and as a result, benefits to the Veteran have been delayed. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.