Citation Nr: 21027497 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-00 178A DATE: May 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from June 27, 2007 to May 14, 2008, is granted. FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence supports finding that his service-connected disabilities render him unable to secure and follow substantially gainful employment from June 27, 2007 to May 14, 2008. CONCLUSIONS OF LAW The criteria for entitlement to a TDIU from June 27, 2007 to May 14, 2008, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the Army from August 1969 to July 1971. This matter is on appeal to the Board of Veterans' Appeals (the Board) from March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In May 2015, the Board remanded the claim for additional development. In a November 2016 Board decision, the Veteran's PTSD rating was increased to 70 percent prior to September 30, 2014, a coronary artery disease (CAD) rating was increased to 30 percent, and the TDIU claim was denied. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In a May 2018 Memorandum decision, the Court affirmed the Board's November 2016 decision as to the PTSD and CAD increased ratings and vacated the TDIU denial. The claim was remanded for readjudication. In December 2018, the Board granted the Veteran a 100 percent rating for his PTSD effective prior to September 30, 2014. The Board denied the Veteran's TDIU claim for the period prior to September 30, 2014 and the period since September 30, 2014. The Veteran appealed to the Court. In September 2019, the Court issued a Joint Motion for Partial Remand (JMPR) vacating the Board's December 2018 decision regarding his TDIU claim both prior to and since September 30, 2014 and remanded for readjudication. In July 2020, the Board granted the Veteran's claim for TDIU from May 15, 2008 to May 8, 2012. The Board referred the Veteran's claim for TDIU from June 27, 2007 to May 14, 2008 and from October 1, 2014, to the Director of Compensation Service for extraschedular consideration. In December 2020, the Director determined that the totality of the evidence did not show any extraschedular entitlement to TDIU. Overall, the evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented the Veteran's gainful employment prior to May 15, 2008. The Board notes that the Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). Therefore, the Board will now independently consider whether the Veteran is entitled to an extraschedular TDIU. The Board notes a January 2021 rating decision granted TDIU effective October 1, 2014. Therefore, the remaining issue on appeal is entitlement to a TDIU from June 27, 2007 to May 14, 2008. Governing Law and Regulations Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for a TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would have justified a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (2012). For the VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. Analysis The Veteran contends that he has been unable to work because of his service-connected disabilities. From June 27, 2007 to May 14, 2008, the Veteran was service connected for coronary artery disease (CAD) evaluated at 10 percent disabling effective September 30, 2002, diabetes mellitus evaluated at 20 percent disabling effective August 11, 2006, a low back condition evaluated at 10 percent disabling effective August 1, 1978, a left medial meniscus injury evaluated at 10 percent disabling effective September 30, 2002, left and right lower extremity peripheral neuropathy each evaluated at 10 percent disabling effective July 16, 2007, noncompensable bilateral hearing loss effective July 9, 1971, and noncompensable erectile dysfunction effective July 16, 2007. From June 27, 2007 to July 15, 2007, the Veteran's combined rating was 40 percent disabling. From July 16, 2007 to May 14, 2008, his combined rating was 60 percent disabling. The Board notes that from June 27, 2007 to May 14, 2008, the Veteran had two or more disabilities; however, he did not have at least one disability that was rated at 40 percent or more disabling with additional service-connected disabilities to bring the combined rating to 70 percent or more. The Veteran did not meet the threshold requirements for a TDIU. 38 C.F.R. § 4.16(a). Therefore, from June 27, 2007 to May 14, 2008, TDIU is not warranted on a schedular basis. In July 2007, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. He reported completing high school. He had machine shop training from 1967 to 1969 but no other training was described. He reported his last day of work was June 26, 2007. He was a security officer with the Caddo Parish School Board since January 2002. He worked 40 hours a week and earned $22,000 in the last 12 months. The Veteran reported he was unable to work because of his diabetes mellitus. He also suffered from a blockage around the heart, high cholesterol, glaucoma, skin rash, arthritis, a back condition, an enlarged prostate, sleep disorder, asthma, stomach problems, hemorrhoids, a hiatal hernia, acid reflux, exposure to an herbicide agent, and PTSD. In the Veteran's September 2007 Social Security Administration (SSA) function report, he reported difficulty with lifting, squatting, bending, standing, walking, kneeling, climbing stairs, seeing, and using his hands. He experienced pain, stiffness, tingling in his hands and feet, and shortness of breath. He could walk 10 minutes before needing to stop and rest for five minutes. In a May 2008 statement in support of his claim, the Veteran reported a sleep disorder due to his diabetes. He was getting up several times a night to urinate. This was causing a deterioration of his health making him unemployable. The Veteran is competent to report on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to describe his symptoms and their effects on his daily activities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In September 2007, the Veteran submitted a work history report as part of his SSA disability claim. He reported working as a security coordinator with the school board from 2001 to 2007. He was responsible for patrolling the campus, surveillance, and stopping fights. He worked 40 hours a week and earned $10.50 an hour. In October 2007, a VA Form 21-4192 was completed by Caddo Parish School Board. The Veteran worked as a security coordinator from July 29, 2002 to June 26, 2007. He had been out on sick leave since July 30, 2007. He earned $23,669 in the last 12 months and worked 40 hours a week. In May 2008, an Administrative Law Judge with SSA found the Veteran disabled as of June 26, 2007. The Veteran's severe impairments included diabetes mellitus, hepatitis B, asthma, and lumbar spondylosis. He could perform the full range of sedentary work. Based on his residual functional capacity to perform sedentary work, age, and past relevant work the grid rules directed a finding of disabled. The Board notes that VA regulations contain many factors to be considered as part of a TDIU analysis. See 38 C.F.R. §§ 4.16, 4.19. Whether a veteran can perform "sedentary work" or "sedentary employment" is not among them. In fact, neither the term nor any similar phrase is mentioned, much less defined, in any relevant VA statute or regulation. The Board must sufficiently explain how it interpreted the use of the term "sedentary" and how the concept of sedentary work figures into a veteran's overall disability picture and vocational history. Withers v. Wilkie, 30 Vet. App. 139 (2018). Withers declines to adopt a specific definition of the phrase "sedentary employment" for VA purposes when adjudicating entitlement to a TDIU, but instead holds, as noted above, that the Board must provide a definition on a case by case basis. Merriam-Webster online dictionary defines sedentary as doing or requiring much sitting, not physically active. See https://www.merriam-webster.com/dictionary/sedentary. Under 20 C.F.R. 404.1567(a), SSA defines sedentary work as work that involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. The Board finds these definitions are persuasive for purposes of this claim, as the Department of Labor and SSA have expertise in and are charged with defining the exertional requirements of different jobs in the national economy, and SSA is charged with determining the capacity of an individual to satisfy those requirements in adjudicating disability claims. The Board notes that the VA is required to consider SSA's finding. However, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). SSA considered the Veteran's age as well as non-service-connected hepatitis B and asthma. The consideration of these factors cannot be separated from the Administrative Law Judge's conclusion. In June 2007, his treatment records showed his heart had a regular rate and rhythm. There was no evidence of ankle edema, calf swelling or redness, and the pulses in his feet were strong. He had intact monofilament sensation, nails, and skin. In July 2007, The Veteran was assessed with a left ventricle ejection fraction of 62 percent with mild inferoseptal hypokinesis. He complained of right thigh pain in August 2007, which was not alleviated with his leg cramp cream or diabetic foot cream. He was observed to walk with a slight limp. In September 2007, the Veteran presented for a diabetes evaluation with a private provider. This condition was noted to have existed for an extended amount of time. He experienced hypoglycemia, fatigue, headache, and shortness of breath. Physical examination revealed a regular heart rate and rhythm. His peripheral pulses had no cyanosis, clubbing, edema, or varicosities. His lower extremities had normal range of motion and his gait was stable. Palpation of the skin showed no subcutaneous nodules or induration. There was no evidence of skin rashes, lesions, or ulcerations. In September 2007, I.A. (MD), a private treating provider, completed a disability claim form. The Veteran was diagnosed with asthma, hypertension, diabetes, wheezing, peripheral vascular disease, and hyperlipidemia. He had shortness of breath at rest and with exertion. Therefore, the Veteran was restricted from overexerting himself and found unable to work effective September 24, 2007, the date of the examination. Another disability claim form was completed in October 2007 by C.T. (MD), a private treating provider. The Veteran was diagnosed with bronchial asthma, diabetes, and CAD. C.T. opined the Veteran was unable to work since June 26, 2007. I.A. and C.T. considered non-service-connected asthma and hyperlipidemia, which are not relevant to a TDIU claim. However, they are doctors and possess the education and training to render competent and credible opinions. Therefore, the overall opinion that the Veteran had severe functional limitations that prevented him from working due to a combination of impairments was given positive probative value. In a February 2008 VA examination, the Veteran reported a burning sensation in his feet since 2006. He was diagnosed with diabetes, mild peripheral neuropathy of the bilateral lower extremities, and CAD. Physical examination found normal monofilament sensation, vibratory sensation, and position sense of the fingers and toes. His extremities were without edema. He had occasional shortness of breath related to his CAD. In a February 2008 VA examination, the Veteran complained of erectile dysfunction for the past two years. He experienced nocturia two times a night. However, he denied incontinence. There was no evidence of renal dysfunction, urinary tract infections, or nephritis. His erectile dysfunction had no effect on his daily activities. In a February 2008 VA examination, the Veteran complained of continuous low back pain since 1969 without radiation. He was diagnosed with spondylosis of L5-S1. He denied flare-ups or use of an assistive device. This condition did affect his ability to lift, stand, and bend. Physical examination found decreased range of motion of the lumbar spine. He had a forward flexion of zero to 80 degrees, extension of zero to 10 degrees, bilateral lateral flexion of zero to 20 degrees, and bilateral rotation of zero to 20 degrees. There was no evidence of pain with motion, he had good strength, negative straight leg raise testing, and no intervertebral disc syndrome (IVDS). In a February 2008 VA examination, the Veteran complained of left knee pain, weakness, stiffness, and swelling. He denied instability or locking. He did not use an assistive device. He was functionally limited in his ability to bend, walk, and stand. Physical examination found decreased range of motion of the knees with flexion of zero to 120 degrees. He exhibited some tenderness of the left knee medial aspect. The Veteran was diagnosed with mild degenerative joint disease of the left knee. In a February 2008 VA examination, the Veteran was diagnosed with mild bilateral sensorineural hearing loss. He complained of difficulty hearing people with weak voices and a recurrent ringing in his ears. In a May 2008 VA examination, the examiner opined the Veteran's hearing loss should not interfere with his ability to obtain or maintain employment. There would be very minimal functional limitations. The Board notes the February 2008 VA examiner assessments and May 2008 VA examiner's opinion the Veteran's hearing loss would have a very minimal functional impact. However, the February 2008 VA examiner did not opine as to the functional impact of his impairments, and the May 2008 opinion did not account for all of the Veteran's service-connected disabilities in determining his capacity to secure or follow substantially gainful employment. Resolving reasonable doubt in the Veteran's favor, the Board finds that from June 27, 2007 to May 14, 2008, given the Veteran's work experience as a security guard, limited education, and service-connected disabilities he was unable to obtain or retain substantially gainful employment. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.