Citation Nr: 21024005 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-41 839 DATE: April 21, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, effective September 9, 2015 to January 31, 2019 and from December 6, 2019. REMANDED Entitlement to a rating in excess of 20 percent for left lower extremity tibial nerve neuropathy is remanded. Entitlement to a TDIU from February 1, 2019 to December 5, 2019 is remanded. FINDING OF FACT From September 9, 2015 to January 31, 2019 and from December 6, 2019, the Veteran met schedular requirements for a TDIU and was unable to obtain and maintain employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disabilities have been met as of September 9, 2015 to January 31, 2019 and from December 6, 2019. 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 served on active duty in the United States Army from August 2007 to December 2011, including service in Iraq from June 2008 to May 2009 and from September 2010 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. TDIU The Veteran seeks a TDIU based on his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009 A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). From September 9, 2015 to January 31, 2019 and from December 6, 2019, the Veteran met schedular requirements for a TDIU. The appeal period before the Board begins on September 9, 2015, the date the Veteran filed his claim for benefits. His work history consists of manual labor as a machine operator. He reports that he last worked on August 1, 2015. See November 2020 21-8940. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran’s service-connected disabilities prevented him from securing and following substantially gainful employment since September 9, 2015, the day the appeal period begins. The Board notes that a TDIU is warranted from September 9, 2015 to January 31, 2019 and from December 6, 2019. This is the period that the Veteran met schedular requirements for a TDIU. The Board will address February 1, 2019 to December 5, 2019 in the REMAND portion of this decision. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the physical limitations by the Veteran’s service-connected disabilities, the Veteran is unable to perform jobs consistent with his manual labor occupational history. He is limited in his ability to perform work duties requiring extensive use of his right shoulder. He also reports problems with walking, sitting, standing due to his left leg nerve condition. His service-connected PTSD further limits his ability to function in a work like setting. His PTSD results in difficulty with memory, including memory loss. He has difficulty establishing and maintaining effective relationships, including those in a work-like setting, and has difficulty adapting to stressful situations. See April 2018 VA examination. Based on his specific occupational history, the Veteran was unable to obtain and maintain employment and as a result, a TDIU is warranted. REASONS FOR REMAND Lower Left Extremity At the April 2021 hearing, the Veteran alleged that his left lower extremity tibial nerve neuropathy worsened. As a result, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his left lower extremity nerve disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board also notes that all VA examinations must consider recent court rulings highlighting the adequacy of medical evaluations. More specifically, the United States Court of Appeals for Veterans Claims (Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so. As a result, the VA examination must also consider these factors. TDIU (February 1, 2019 to December 5, 2019) The Veteran did not meet schedular requirements for a TDIU during this time period. He contends that his shoulder, left lower extremity, and psychiatric disability resulted in his inability to obtain and maintain employment. Entitlement to an increased rating for the Veteran’s left lower extremity neuropathy is also inextricably intertwined with this issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, remand is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for his left lower extremity neuropathy. The VA examiner must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint and record all necessary information regarding any flareups the Veteran experiences.   3. If the Veteran does not meet schedular requirement for a TDIU from February 1, 2019 to December 5, 2019 refer his TDIU claim for this period to the Director, Compensation Services. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ijitimehin, Kemi D. 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.