Citation Nr: 21025050 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-05 998 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 5, 2018 is denied. Entitlement to TDIU from June 5, 2018, to October 1, 2018, is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record indicates that the service-connected disabilities did not preclude the Veteran from securing and following substantially gainful employment prior to June 5, 2018. 2. The evidence is at least in equipoise regarding whether the service-connected disabilities precluded the Veteran from securing or following substantially gainful employment from June 5, 2018 to October 1, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU were not met prior to June 5, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for TDIU were met from June 5, 2018, to October 1, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2005 to March 2006 and from November 2006 to June 2009. The Veteran appeared at an October 2018 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In June 2019, December 2019, and November 2020, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional action. In light of the additional development and the further adjudicatory actions taken, the Board finds that there has been substantial compliance with the prior remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to TDIU 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 as totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn a livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). TDIU may be assigned, if the schedular rating is less than total, 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, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A claim for TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU because of subjective factors that the objective rating does not consider. Vittese v. Brown, 7 Vet. App. 31 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The issue of entitlement to TDIU arose from a June 2017 claim for temporary TDIU. An August 2017 rating decision found that the service-connected disabilities did not prevent the Veteran from engaging in substantially gainful employment. The Veteran perfected an appeal of the denial of TDIU. Thus, the period on appeal is June 22, 2017, date of claim, and one year prior, to the present. For the appeal period from October 1, 2018 to present, the Board notes that the Veteran has a combined service-connected disability rating of 100 percent based on multiple service-connected disabilities. Because the Veteran does not have a 100 percent rating for a single disability, the issue of entitlement to TDIU as of October 1, 2018, is moot. Bradley v. Peake, 22 Vet. App. 280 (2008). The issue of entitlement to a TDIU from June 22, 2017, or within the year prior, to October 1, 2018, remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009); AB v. Brown, 6 Vet. App. 35 (1993). At the October 2018 Board hearing, the Veteran stated that he had last worked in November 2017 for about a month. He stated that he worked as a driver and aggravated a back injury. Before that, he had worked in 2016 for two or three months as a firearms sale specialist. During a September 2019 VA examination, the Veteran reported that he finished high school and briefly attended college. In July 2017, and on November 17, 2020, and February 2, 2021, VA sent the Veteran a VA Form 21-8940 to allow him to provide information supporting a claim for TDIU. The Veteran did not return the form. The Veteran's current service-connected disabilities are PTSD, rated 70 percent; a bilateral foot disability, rated 50 percent; right knee patellofemoral syndrome, rated 40 percent; arthritis of the thoracolumbar spine, rated 40 percent; right knee instability, rated 20 percent; right leg sciatic nerve radiculopathy, rated 20 percent; left leg sciatic nerve radiculopathy, rated 20 percent; left knee patellofemoral syndrome, rated 10 percent; tinnitus, rated 10 percent; left knee scar, rated 0 percent; tic, rated 0 percent; and thoracic spine scar, rated 0 percent. The combined service-connected disability rating has been 50 percent as of February 13, 2015; 80 percent as of June 5, 2018; 90 percent from July 10, 2018; and 100 percent from October 1, 2018. Thus, the Veteran has met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) as of June 5, 2018. Prior to June 5, 2018, the Veteran did not meet the schedular criteria for consideration of TDIU. Nevertheless, a Veteran may be entitled to TDIU if it is established that the Veteran is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment, or work that is more than marginal, which permits the individual to earn a living wage prior to June 5, 2018. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making the determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Where unemployability due to service-connected disabilities is shown and the requirements of 38 C.F.R. § 4.16(a) are not met, the Board is required to refer a claim to Department officials for a decision before the Board may consider the claim TDIU. Wages v. McDonald, 27 Vet. App. 233 (2015). The regulation requires that, in cases where evidence suggests the veteran is unemployable by reason of service-connected disabilities and does not meet the threshold percentage requirements of 38 C.F.R. § 4.16(a), the case is to be submitted to VA's Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted pursuant to 38 C.F.R. § 4.16(b). To warrant a referral for TDIU consideration pursuant to 38 C.F.R. § 4.16(b), the evidence of record must at least suggest that the Veteran may be unable to secure and follow a gainful occupation due to his service-connected disabilities, which is not the case here. 38 C.F.R. § 4.16(b). Prior to June 5, 2018, VA medical records show ongoing treatment for service-connected disabilities, including back pain, knee pain, and PTSD. No VA examinations are of record for the period from June 22, 2017, to June 5, 2018. Service connection for that period is established for a bilateral foot disability, PTSD, bilateral knee patellofemoral syndrome, and tinnitus, with 0 percent ratings assigned for a left knee scar and a nonepileptic tic. The combined rating was 50 percent. VA treatment records show reports of foot and knee pain. Service-connected PTSD was assigned a 30 percent rating, which is consistent with 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. Although the evidence indicates that the service-connected foot, knee, and psychiatric disabilities caused an employment impairment, this is not the same as preventing him from engaging in substantially gainful employment. The Board has reviewed the November 2016 VA examinations, but those examinations do not suggest that the service-connected disabilities precluded employment. The knee examination found that the Veteran had knee pain and was unable to stand for long periods of time or walk over 15 years without resting the knee. The Board finds that the evidence does not show functional occupational limitations due to the service-connected disabilities that preclude employment consistent with the Veteran's training and experience during the appeal period prior to June 5, 2018. The Veteran has not submitted any opinion evidence that supports a finding that he was unemployable due to service-connected disabilities. Moreover, the evidence shows that the Veteran was occasionally employed. The Board finds that referral of this matter for consideration of an award of TDIU pursuant to 38 C.F.R. § 4.16(b) for the period prior to June 5, 2018, is not warranted. During part of that period the Veteran was employed. While he quit or changed jobs to accommodate disability issues, the evidence does not show that the service-connected disabilities precluded obtaining or retaining employment prior to June 5, 2018, so referral to department officials for consideration is not warranted. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent the service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for that impairment. Therefore, remand for referral to the Director of the Compensation Service for consideration for TDIU for the period prior to June 5, 2018, is not warranted and the appeal must be denied. 38 C.F.R. § 4.16(b). As of June 5, 2018, the Veteran was assigned higher ratings for back and bilateral foot disabilities. On that date, the combined disability rating was 80 percent with a bilateral foot disability rated 50 percent. Thus, the schedular requirements for consideration of TDIU under 38 C.F.R. § 4.16(a) were met. On back, knee, and foot Disability Benefits Questionnaires (DBQ) of July 2018, the examiner indicated that the Veteran’s ability to perform any type of occupational task was affected by back pain, muscle spasms, and radiculopathy; bilateral knee pain, weakness, and limitation of motion; and foot pain. Specifically, the examiner noted difficulty with prolonged sitting, standing, walking, and lifting due to the service-connected back, knee, and foot disabilities. Based on the evidence of record of the service-connected disabilities, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was precluded from securing or following gainful employment due to the combined effects of the service-connected disabilities as of June 5, 2018, but not earlier. The Board finds that for the period from June 5, 2018, to October 1, 2018, the evidence is at least in equipoise regarding whether the Veteran would be able to function in any occupational setting due to his increasing physical limitations, as demonstrated by the evidence. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran, and find that entitlement to TDIU is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke, 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.