Citation Nr: 21026537 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-64 461 DATE: May 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning January 9, 2014, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT Beginning January 9, 2014, the evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU beginning January 9, 2014, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1977 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2021, the Veteran presented sworn testimony during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. TDIU TDIU may be granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2015) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Pursuant to 38 C.F.R. § 4.16(a), marginal employment or the ability to work sporadically shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual 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, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims, held that "substantially gainful employment" has both an economic and non-economic component. 38 C.F.R. § 4.16(b). The economic component includes the Veteran's ability to earn more than a marginal income as evidenced by federal poverty thresholds. The non-economic component involves assessing the Veteran's actual ability to work. Factors to be discussed include (1) the Veteran's history, education, skill, and training; (2) whether the veteran has the physical ability to perform the type 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. The Veteran's service-connected disabilities include: (i) adjustment disorder (50 percent); (ii) left lower extremity sciatic nerve radiculopathy (40 percent); (iii) chronic lumbosacral strain (40 percent); (iv) right lower extremity sciatic nerve radiculopathy (10 percent); (v) left lower extremity femoral nerve radiculopathy (10 percent); (vi) right lower extremity femoral nerve radiculopathy (10 percent); and (vii) status post right knee Osgood-Schlatters tibial tuberosity ossicle (10 percent). The Veteran's combined schedular disability was 90 percent beginning January 9, 2014, which is also the earliest date of claim that can be assigned in this matter based on the Veteran's submission of additional evidence in support of his claim for TDIU within one year of the March 2016 rating decision that originally assigned a 50 percent rating for the Veteran's PTSD. 38 C.F.R. § 4.25. Thus, the Veteran meets the scheduler percentage requirements for TDIU from this time. The Veteran submitted his Application for Increased Compensation Based on Unemployability, VA Form 21-8940, in March 2016 and indicated that his adjustment disorder, radiculopathy and back conditions prevent him from securing or following any substantially gainful occupation. He last worked full time in August 2012 as a supervisor, making $2,300 per month. The most he had ever earned in one year was in 2011, when he earned $18,000. Since becoming too disabled to work, the Veteran had applied to several customer service jobs, but was unable to obtain employment. He completed four years of high school and one year of college but did not have any additional education or training before becoming too disabled to work. He did, however, enter the Veterans Retraining Assistance Program (VRAP) in January 2014 where he completed one semester of business management courses. The Veteran indicated that, in his last position, he cleaned crime scenes and many of the jobs would bother him mentally. He was also unable to sit for long periods or drive long distances because of his back condition. The Veteran's last employer submitted correspondence in November 2016 indicating that the Veteran was employed with them from November 18, 2011, until July 27, 2012. The Veteran received a VA Back examination in July 2014 and the examiner noted that he had difficulty with driving and getting in and out of a truck at his last job. On his March 2017 notice of disagreement (NOD), the Veteran's representative stated that the Veteran had "a combination of disabilities that, as a whole, make it nearly impossible for him to work." He was in such severe pain every day that he was unable to stand, sit, lay down, or find any form of rest to soothe the condition, making it almost impossible to find gainful employment. The Veteran also attempted Vocational Rehabilitation but was unable to fulfill the coursework. The Veteran received a VA examination in October 2016 for his adjustment disorder and the psychologist found no indication that his psychological condition would interfere with employment. The Veteran received a VA Peripheral Nerves examination in October 2016 and the examiner found that the condition caused difficulty with prolonged walking, sitting, and standing. The Veteran received a VA examination in April 2020 for his right knee condition and the examiner noted that walking was difficult, repetitive movements were difficult (such as using stairs and driving) and he was unable to squat. At the March 2021 Board hearing, the Veteran testified that he last worked in August 2012. He was granted entry into the VRAP program but was only able to complete one semester because the program was ending. While attending school, the Veteran had difficulty sitting in the classroom for long periods of time and using stairs. Due to his service-connected conditions, the Veteran took medications and they caused side effects that impacted his ability to work. Specifically, the Veteran fell asleep during the day because he was unable to sleep at night. At his last job, the Veteran drove a sprinter truck to and from crime scenes, and he experienced difficulties driving and getting in and out of the vehicle. Most of the jobs he drove to were suicides involving veterans, and they took a toll on him because he "felt the same way probably that they did." The Veteran's daughter also testified that the Veteran moved to North Carolina and moved in with her. She indicated that the Veteran had a problem with sitting, especially for long periods of time. If the Veteran had to go through training for a job or additional school, he would have difficulty sitting for the entire period of time. Regarding the economic component of TDIU, the Board notes that the Veteran last worked full time in July 2012 as a supervisor for a crime scene cleaning company. He worked there for 8 months and made $2,300 per month. Prior to that, he worked assembling circuit boards and made $1,360 per month. The Board will resolve reasonable doubt in the Veteran's favor and award entitlement to TDIU. Based on the evidence presented in this case, the functional impairment associated with the Veteran's disabilities is of such nature and severity as to preclude substantially gainful employment. The Board highlights that the Veteran has primarily worked in a manual labor capacity, which is no longer feasible given the service-connected back and radiculopathy conditions. While his last position was as a supervisor, the Veteran was required to sit and drive long distances, which is no longer possible due to his back and radiculopathy conditions. Furthermore, the inability to sit for long periods of time would severely impact his ability to obtain additional education or training. There is also evidence that the Veteran's medication for his service-connected disabilities affect his sleep; he was unable to sleep at night and randomly fell asleep during the day. Therefore, resolving reasonable doubt in the favor of the Veteran, the Board finds that the evidence of record supports entitlement to an award of TDIU beginning January 9, 2014. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.