Citation Nr: 21026141 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-22 663 DATE: April 29, 2021 ORDER A total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to June 5, 2012, or due to a single service-connected disability thereafter, exclusive of the period a 100 percent temporary total rating has been assigned, is denied. FINDINGS OF FACT 1. Prior to June 5, 2012, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 2. As of June 5, 2012, exclusive of the period a 100 percent temporary total rating has been assigned, a single service-connected disability did not render the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities prior to June 5, 2012, or due to a single service-connected disability thereafter, exclusive of the period a 100 percent temporary total rating has been assigned, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to December 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2015 by a Department of Veterans Affairs (VA) Regional Office. In July 2015, the Veteran and his friend testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. In June 2018, the Board remanded the claim on appeal, as well as claims for service connection for a low back disorder, a bilateral hand disorder, and an acquired psychiatric disorder. While on remand, a July 2020 rating decision granted service connection for degenerative disc disease of the thoracolumbar spine (DDD), carpal tunnel syndrome with ulnar nerve neuropathy at Guyon’s canal (CTS) of the bilateral upper extremities, and major depressive disorder (MDD). As such is a full grant of the benefits sought on appeal with respect to these issues, they are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The remaining claim now returns for further appellate review. In this regard, the Board observes that, as a result of the July 2020 rating decision, the Veteran has been assigned a 100 percent combined schedular rating as of June 5, 2012, and special monthly compensation (SMC) at the housebound rate from July 3, 2012, to September 30, 2012, based on the assignment of a temporary total rating for his left knee disability. Despite such awards, VA has a “well-established” duty to maximize a claimant’s benefits. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley at 294 finding that SMC ”benefits are to be accorded when a veteran becomes eligible without need for a separate claim”). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for SMC provided by that statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. For SMC purposes, a TDIU based on a single service-connected disability satisfies the requirement of a “service-connected disability rated as total.” See Buie at 251; Bradley at 293. Therefore, as the Veteran’s claim for a TDIU stems from April 20, 2012, the date of receipt of his claim for service connection for a low back disorder, his claim for entitlement to a TDIU due to service-connected disabilities prior to June 5, 2012, or due to a single service-connected disability thereafter, exclusive of the period a 100 percent temporary total rating has been assigned, is properly before the Board. Entitlement to a TDIU due to service-connected disabilities prior to June 5, 2012, or due to a single service-connected disability thereafter, exclusive of the period a 100 percent temporary total rating has been assigned. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when 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 (1991) (level of education is a factor in deciding employability); 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). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) was defined to include two components: economic and noneconomic. 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As noted previously, the instant claim stems from April 20, 2012, the date of receipt of the Veteran’s claim for service connection for a low back disorder, as he has alleged entitlement to a TDIU based, in part, on such service-connected disability. Thus, for the appeal period beginning such date, he is service-connected for left knee post total knee arthroplasty, evaluated as 60 percent disabling prior to July 2, 2012, 100 percent disabling from July 2, 2012, to September 30, 2012; and 60 percent disabling thereafter; MDD, evaluated as 50 percent disabling as of June 5, 2012; residual scaring of the neck and medial clavicle, evaluated as 50 percent disabling as of July 3, 2012; CTS of the right upper extremity, evaluated as 30 percent disabling as of June 5, 2012; DDD, evaluated as 20 percent disabling; scarring of the left lower extremity, evaluated as 20 percent disabling as of July 10, 2012; tinnitus, evaluated as 10 percent disabling; large sclerotic right lateral sesamoid bone, evaluated as 10 percent disabling as of June 5, 2012; CTS of the left upper extremity, evaluated as 10 percent disabling as of June 5, 2012; painful scarring of the left knee and medial clavicle, evaluated as 10 percent disabling as of July 3, 212; decreased sensation of the left face/neck, evaluated as 10 percent disabling as of July 3, 2012; osteoarthritis and degenerative arthritis of the right knee, evaluated as 10 percent disabling as of May 18, 2018; right foot disorder, evaluated as 10 percent disabling as of May 18, 2018; radiculopathy of the bilateral lower extremities, each evaluated as 10 percent disabling as of December 3, 2019; and bilateral sensorineural hearing loss, evaluated as noncompensably disabling. Consequently, for the appeal period, the Veteran’s combined disability rating is 70 percent as of April 20, 2012, and 100 percent as of June 5, 2012, with SMC at the housebound rate from July 3, 2012, to September 30, 2012, which meets the schedular threshold for consideration of a TDIU. Therefore, the claim of entitlement to a TDIU due to multiple service-connected disabilities as of June 5, 2012, and entitlement to a TDIU due to a single disability from July 3, 2012, to September 30, 2012, is moot. Thus, the remaining issue before the Board is entitlement to a TDIU due to service-connected disabilities prior to June 5, 2012, or due to a single service-connected disability thereafter, exclusive of the period a 100 percent temporary total rating has been assigned. Turning to the Veteran’s education and work history, in his August 2014 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported he completed three years of college, and last worked full-time from 2001 to 2008 as a handyman before retiring on January 1, 2009. Additionally, at his July 2015 hearing, the Veteran testified that he has a business degree and, at a December 2009 VA examination, he indicated that, prior to his work as a handyman, he worked as a production inventory control specialist for 30 years. After he could not find work in that area for several years, he became a handyman. Similarly, at an April 2013 VA examination, the Veteran reported that he started out in accounting, spent the majority of his career in production and inventory control, and ultimately worked as a director of materials. Further, Social Security Administration (SSA) records reflect the Veteran worked mostly in manufacturing and owned a management consulting company from January 2001 to June 2003, at which time he began his handyman business. As relevant to the limitations associated with the Veteran’s service-connected disabilities, the Board observes that he does not allege, nor does the record reflect, that his service-connected disabilities other than his left knee and back disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, for the appeal period prior to June 5, 2012, the Veteran is only service-connected for his left knee disability, back disability, bilateral hearing loss, and tinnitus, and the evidence does not show, nor does he contend, that his bilateral hearing loss and/or tinnitus, alone or in combination with his left knee and back disabilities, render him unemployable. Furthermore, as of June 5, 2012, the Veteran does not contend, and the evidence does not show, that a sole service-connected disability of MDD, residual scaring of the neck and medial clavicle, CTS of the bilateral upper extremities, scarring of the left lower extremity, tinnitus, large sclerotic right lateral sesamoid bone, painful scarring of the left knee and medial clavicle, decreased sensation of the left face/neck, osteoarthritis and degenerative arthritis of the right knee, right foot disorder, radiculopathy of the bilateral lower extremities, or bilateral sensorineural hearing loss rendered him unemployable. In this regard, the Board observes that an April 2013 VA mental disorders examination reflects that the Veteran’s MDD only resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Additionally, at such time, the Veteran reported that he had no history of occupational impairment; rather, he was successful in his career and excelled at what he did. Similarly, a June 2018 VA mental disorders examination revealed that his MDD resulted in, at most, occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. Furthermore, such disability has been rated as 50 percent disabling since June 5, 2012, the date of service connection, which reflects that it results in, at most, occupational and social impairment with reduced reliability and productivity. Additionally, January 2014, June 2018, and December 2019 VA examinations reflected that the Veteran’s skin/scar disabilities, large sclerotic right lateral sesamoid bone, decreased sensation of the left face/neck, right foot disability, CTS of the bilateral upper extremities, and radiculopathy of the bilateral lower extremities did not impact his ability to work. Rather, in connection with his claim for a TDIU, the Veteran has alleged that he is unemployable due to his left knee and back disabilities. Specifically, he claims that he can no longer walk more than 500 feet without having to rest his left knee and back and cannot sit for longer than 40 minutes without having to get up and stretch his back. In this regard, the Board observes that SSA records reflect that the Veteran was awarded disability benefits based on DDD with nerve root compromise, Gardner’s syndrome status post multiple bowel surgeries, and his left knee disability as of May 2008; however, such award clearly contemplates his nonservice-connected stomach disability, and does not show that his left knee and back disabilities, singularly or jointly, renders him unemployable. Additionally, a January 2012 VA examination, conducted just prior to the appeal period, the Veteran reported he had retired in 2009 from working as a handyman as he could no longer climb ladders or get down on his knees; however, in March 2012, VA treatment records reflect the Veteran reported his left knee pain intensity was 1 out of 10, and his pain was well controlled. In July 2012, the Veteran was admitted to the hospital for left total knee sepsis and hospitalized through September 2012, for which period he is in receipt of a temporary total rating and SMC at the housebound rate. At an April 2013 VA examination, the Veteran reported that he retired after he had difficulties with his stomach and other joints. In October 2014, Dr. S.P. stated it was unlikely the Veteran would be able to hold a 40 hour [a week] job due to multiple [knee] surgeries and infections, which have caused muscle atrophy. He further indicated that, if the Veteran walks too much, he has significant swelling. If he works for an hour or two, then he is unable to walk, stand, or function for hours and sometimes days after. The pain in the knee has caused him to walk with a chronic limp, causing low back pain and radiculopathy. Thus, Dr. S.P. opined, he is unable to work for any extensive period at all. The Veteran also submitted an October 2014 buddy statement from T.C., who stated that he had known the Veteran for the last 14 years and had watched his ability to work deteriorate because of his injured knee. T.C. further stated the Veteran is now unable to work at all as stairs and steps are problematic, and standing and walking for more than 10 minutes is painful to the point where the Veteran must sit and rest, cannot bend his knee to the floor, and could only tolerate sitting on a bench or bleachers for about a half hour, and then he must reposition his knee because of the pain. However, the Board finds that Dr. S.P..’s and T.C.’s conclusions are not supported by the remainder of the record, and thus, such determinations are afforded less probative weight than the conclusions reached by the VA clinicians who examined the Veteran over the course of several years. In this regard, at a January 2014 VA examination, it was noted that the Veteran was a handyman until his first left knee surgery and then could no longer kneel or climb ladders safely. Similarly, at a December 2014 VA examination, the examiner determined the Veteran’s left knee disability impacted his ability to work only to the extent that he could not lift more than 20 pounds, cannot walk more than ½ block, and would need to alternate sitting and standing every 20 minutes. A November 2016 VA knee examination noted that, due to such disability, the Veteran would not be able to carry more than 5 to 10 pounds, stand for more than 10 minutes, sit for more than 25 minutes, and was limited in his ability to climb stairs as he needed a handrail. Further, the Veteran could not run or jump, dig, garden, kneel, crawl, or bike, and needed to avoid uneven terrain, steep slopes, but could walk on flat land with the use of a supportive device for 200 feet. A March 2018 VA knee examination reflected the Veteran could not stand or walk for a short time because of left knee pain. However, a June 2018 VA examiner noted such disability did not impact the Veteran’s ability to work. Furthermore, at a June 2018 VA examination, the examiner found that, due the Veteran’s back disability, he could not carry heavy things and is unable to sit for long periods of time and, at a December 2019 VA examination, it was determined that such disability only allowed sedentary activity. In August 2017, the Veteran was approved for home health services twice a week to assist with grocery shopping, light meal preparation, and housework. However, VA treatment records reflect the Veteran is able to do some physical activity as he reported he was able to walk without a cane and, in January 2018, he indicated that he was more active lately, even taking a part-time job at a local golf course. In this regard, in August 2018, the Veteran reported that he was not working, but volunteering at the golf course and had to give up this volunteer position after a couple of days because of the pain in his back. However, the record reflects he continued to hit buckets of golf balls at the driving range. See July 2018 records. Based upon a review of the foregoing, the Board finds that the Veteran’s left knee and back disabilities, singularly or jointly prior to June 5, 2012, and singularly as of such date, do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, the record reflects that such disabilities limit the Veteran in regard to his ability to perform physical work, such as a handyman. Specifically, he is unable to climb ladders, kneel, lift more than 20 pounds, walk more than ½ block, carry more than 5 to 10 pounds, stand for more than 10 minutes, climb stairs without a handrail, run, jump, dig, garden, kneel, crawl, or bike, and needed to avoid uneven terrain, steep slopes. Furthermore, the evidence shows that the Veteran needs to alternate sitting and standing every 20 minutes, and cannot sit for more than 25 minutes. However, the Board finds that such limitations would not interfere with the Veteran’s ability to successfully secure and follow a substantially gainful occupation consistent with his degree in business, and work history in accounting, production, and inventory control as a production inventory control specialist and director of materials for 30 years. In this regard, the Board finds that the Veteran is capable of performing the physical and mental acts necessary for the successful performance of such type of position as such do not require physically intensive activities and are generally performed while sitting or standing at a desk. In this regard, such would allow the Veteran to alternate between sitting and standing, and would not require that he remained seated for more than 25 minutes at a time, which the Board finds is consistent with the December 2019 VA examiner’s determination that he is capable of performing sedentary activity. Withers v. Wilkie, 30 Vet. App. 139 (2018). Consequently, based on the foregoing, the Board finds that a TDIU due to service-connected disabilities prior to June 5, 2012, or due to a single service-connected disability thereafter, exclusive of the period a 100 percent temporary total rating has been assigned is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such claim, the benefit of the doubt doctrine is not applicable and the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.