Citation Nr: 21025820 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 10-06 775 DATE: April 29, 2021 ORDER From February 1, 2005, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT From February 1, 2005, the Veteran was unable to maintain substantially gainful employment as a result of service connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU, pursuant to 38 C.F.R. § 4.16(b), have been met from February 1, 2005. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from November 1979 to August 1980. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter has been before the Board on multiple occasions. In July 2014, June 2016, and September 2017, the instant matter was remanded for additional development. In a November 2018 decision, the Board denied a TDIU. The Veteran appealed the November 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated December 2019, the Court granted a Joint Motion for Remand (JMR), which remanded the TDIU issue on appeal back to the Board for development consistent with the JMR. As the instant decision grants a TDIU from February 1, 2005, which is a complete grant as to the issue on appeal, no further discussion of remand or JMR compliance is necessary at this time. See Forcier v. Nicholson, 19 Vet. App. 414 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants a TDIU for the entire rating period on appeal, no further discussion of VA’s duties to notify and assist is necessary. TDIU 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 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 (Director), 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 issue, 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 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. 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). Throughout the course of this appeal, the Veteran was service connected for lumbar spine degenerative disc disease (DDD), rated as 20 percent disabling prior to February 17, 2010, and 40 percent disabling from February 17, 2010, and left lower extremity radiculopathy, rated as 10 percent disabling from February 17, 2010; therefore, the service-connected disabilities, either prior to or after February 17, 2010, did not meet the combined rating percentage rating requirements of 38 C.F.R. § 4.16(a) for eligibility for a TDIU. In a May 2017 administrative opinion, the Director found that a TDIU was not warranted pursuant to 38 C.F.R. § 4.16(b). The Board is not bound by the Director’s May 2017 administrative decision, so will exercise its de novo review authority to decide whether a TDIU is warranted in this case for the rating period on appeal. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Next, the Board will address the TDIU rating period on appeal. As discussed in the introduction, this matter comes on appeal from a March 2009 RO rating decision denying a TDIU; however, review of the record reflects that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the TDIU issue on appeal actually attached to a June 2005 claim for an increased disability rating for the service-connected DDD of the lumbar spine. Further, as the evidence of record indicates that the Veteran first became too disabled to work on February 1, 2005, which is during the one year look-back period for an increased rating claim, the Board finds the appropriate TDIU rating period on appeal to be from February 1, 2005 to the present. 38 C.F.R. § 3.400. During the long procedural history of this appeal, VA has received significant evidence both for and against the TDIU issue on appeal. As the most significant of this evidence is summarized in the report from an April 2021 private vocational assessment, and as the Board finds the private vocational assessment to be the most probative evidence of record, the instant decision will primarily focus on the vocational expert’s findings in April 2021. Per the report from an April 2021 private vocational assessment, the vocational expert reviewed the service records, the lay and medical evidence of record, and conducted an interview with the Veteran. Concerning education, the Veteran has an eleventh grade education and no high school diploma or GED. During service the Veteran worked as an ARM crewman, which had a medium physical demand level. Following service, the Veteran worked as a heavy truck driver, which also had a medium physical demand level. Additionally, the Veteran worked as a tank cleaner for seven years, which had a heavy physical demand level. On or about August 1997, the Veteran began receiving treatment for back pain, which was subsequently service connected by VA. Throughout the late 1990s and early-to-mid 2000s, the Veteran’s back was treated with Methadone and other prescription pain killers. Multiple VA treatment records beginning on or about early 2005 reflect that the Veteran complained of back pain symptoms significantly impacting the ability to work. In April 2008, the Veteran received a Social Security Administration (SSA) orthopedic examination. Per the SSA examination report, the back disability symptoms resulted in marked limitation in lifting, bending, and carrying, and a mild limitation in standing or sitting. The Veteran was taking multiple prescription pain killers at that time. Subsequently, SSA found the Veteran to be disabled due to a combination of the service-connected lumbar spine DDD and a non service connected eye disability, beginning February 1, 2015. In reaching this decision, SSA considered both the Veteran’s physical limitations and the Veteran’s educational and employment history. It was determined that the Veteran would be unable to perform any of the prior jobs that had been worked in the past. Per a July 2009 VA treatment letter, a nurse practitioner opined that the Veteran would be unable to work as a laborer or truck driver due to back pain. In June 2016, VA obtained a TDIU opinion. Per the TDIU opinion report, a VA examiner opined that the Veteran could partake in light labor; however, the private vocational expert found this opinion to be inadequate. Specifically, the VA examiner failed to consider the June 2008 SSA functional capacity assessment that found the Veteran “cannot do sustained work related to physical and mental activities in a work setting on a regular and continuing basis of eight hours a day for five days a week, or an equivalent work schedule, and he can lift and carry no more than 10 lbs. occasionally, sit only 4 to 5 hours, stand one hour, or walk two hours in an 8 hour workday (sitting no more than 60 minutes, standing no more than 20 minutes, and walking no more than 15 minutes at a time).” The vocational expert then opined that the evidence of record did not support that the Veteran could perform any sedentary work. Per a March 2021 private medical record, a private physician opined that the Veteran’s prior medical history, to include opiod usage, made it unlikely that the Veteran has any capacity for gainful employment, even in a sedentary setting. After reviewing all the evidence of record, to include that discussed above, the private vocational expert opined that the service-connected lumbar spine DDD alone prevented the Veteran from obtaining or maintaining substantially gainful employment from February 2005. In support of the above opinion, the private vocational expert explained that the Veteran’s back disability symptoms would result in the Veteran taking more days off then would be tolerated by an employer. Further, the Veteran would be unable to sit long enough to perform sedentary employment. Considering the Veteran’s education and work history, the vocational expert found that the Veteran had no transferable skills that would be applicable to a sedentary work environment. At the conclusion of the examination report, the private vocational expert stated that the Veteran’s “education and work experience (which does not readily translate to sedentary occupational environments) further limit his ability to obtain gainful employment.” While the Veteran did have a non-service-connected eye disability that further limits employability, the vocational expert specifically opined that the service-connected back disability alone is severe enough to preclude substantially gainful employment. For the above reasons, the private vocational expert opined that it was more likely than not that the Veteran was unemployable due to the service connected lumbar spine DDD alone since February 1, 2005. Considering all the evidence of record, to include the 2021 private vocational assessment, the Board finds that, from February 1, 2005, the service-connected disabilities prevented the Veteran from maintaining substantially gainful employment. As such, upon resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU is warranted from February 1, 2005. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.