Citation Nr: 21028231 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-18 331A DATE: May 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective September 30, 2010 is granted. FINDING OF FACT It is reasonably shown that the Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation for the period prior to October 20, 2017. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for TDIU are met from September 30, 2010. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from January 2007 to April 2007 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in August 2020 and June 2019 for additional development. The matter is now returned to the Board for further appellate review. In the August 2020 decision, the board remanded the issue of TDIU prior to October 20, 2017 to the Agency of Original Jurisdiction (AOJ) for referral to the Director, Compensation Service, for extraschedular consideration. Prior to referral to the Director, in an April 2020 rating decision, the AOJ increased the Veteran's rating for Unspecified Depression Disorder with Alcohol Use Disorder to 30 percent, effective September 30, 2010 and 70 percent from January 31, 2018. Accordingly, the Veteran is now in receipt of a 70 percent combined evaluation effective September 30, 2010, and is in receipt of a single, service-connected disability of limited flexion, left knee, rated at 40 percent disabling effective April 13, 2007. Therefore, the rating threshold for consideration of a scheduler TDIU rating under 38 C.F.R. § 4.16(a) is met from September 30, 2010. Entitlement to a TDIU VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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 justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, 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. 38 C.F.R. § 4.16(a). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran is now entitled to a combined rating of at least 70 percent with a single disability rated at 40 percent or more since September 30, 2010. Accordingly, the Veteran has met the schedular requirements for TDIU since September 30, 2010. Despite the Veteran's increased rating for his depression, rendering him eligible for a scheduler TDIU, the AOJ referred the matter to the Director for extraschedular consideration in accordance with the Boards August 2020 remand. In an opinion issued in January 2021, the Director of Compensation Service determined that entitlement to a TDIU on an extraschedular basis was not warranted. The director primarily relied on the Social Security Administration (SSA) decision that denied the Veteran entitlement to SSA disability; however, the Board is not bound by SSA determinations. Concerning this determination, the Board is not bound by an adverse determination by the Director regarding extra-schedular entitlement to a TDIU. The Court has determined that the Director's decision is, in essence, a decision by the AOJ and is no different than an RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). The Board has reviewed the record and finds that, when resolving all reasonable doubt in favor of the Veteran, the Veteran's service-connected disabilities prevented him from obtaining or maintaining substantially gainful employment prior to October 20, 2017, the initial date of entitlement for TDIU determined by the RO. The Veteran formally applied for a TDIU in December 2020, asserting his service-connected disabilities, including connected left knee injury with patellofemoral syndrome, right knee limitation of flexion, depression, degenerative disc disease with bilateral femoral and sciatic lower extremity radiculopathy made him unable to continue working. The Veteran reported he was in extreme pain and he could not complete his duties, including standing and lifting, because of his spine and bilateral knee disabilities. Further, he reported fatigue caused by his prescribed medications. On his application, the Veteran reported he completed three years of high school, did not attend college, and did not receive any education or training prior to or after becoming too disabled to work. However, his application indicates he had training as an automotive technician. The Board notes in a February 2016 resume, the Veteran reported an Associate Degree, completed in 2017. Moreover, the record reflects the Veteran completed high school with a GED. The Veteran's resume indicates he worked as a cook and manager from April 2005 until December 2012; a warehouse manager from July 2012 to February 2013; a courier/truck driver beginning in December 2015. It is not immediately clear from the record when the Veteran ceased working as a courier/truck driver; however, it appears to be sometime in 2016 because a March 2016 Vocational Rehabilitation and Education (VRE) note indicates the Veteran's employer suspended him due to time off for VA appointments. In a February 2016 VA Form 28-1902b, Counseling Record, the Vocational Rehabilitation Counselor (VRC) reported the Veteran did not attend college, had no vocational training, no professional certificates, no transferrable skills from training, but did have transferable military training as a supply truck driver. She reported the Veteran is currently working as a truck driver/courier and earns approximately $2,500.00 per month. However, the VRC reported the Veteran's service-connected disabilities significantly impair his ability to prepare for, obtain, or retain employment. She reported the Veteran is unable to perform highly physical or manual labor because of his disabilities and is precluded from working in positions such as driving, warehouse work, or construction. Further, the VRC reported the Veteran's service-connected disabilities place him at an employment disadvantage and make him unable to obtain, maintain, or prepare for specific employment that does not aggravate his service-connected disabilities. She concluded that the effects of the impairment contribute in an identifiable, measurable, or observable way to the Veteran's ability to obtain, maintain, or retain employment that is consistent with his disabilities. In a March 2018 VA back examination, the Veteran reported he takes tramadol for pain, uses a back brace and a cane, and received back injections for pain management. He reported severe, daily flare-ups that last for hours. The examiner noted the Veteran cannot bend his back, turn sideways, and experienced pain in all range of motion testing. The examiner reported moderate radiculopathy pain, paresthesias, and numbness. The examiner concluded that the Veteran's back condition impact's his ability to work. Moreover, the examiner noted the Veteran missed more than five weeks of work in the last year because of his back and is in constant pain. In a March 2018 VA knee and lower leg examination, the Veteran reported constant right knee pain with daily flare-ups that last for hours. The examiner noted the Veteran experienced pain on flexion and extension. The examiner concluded the Veteran's bilateral knee conditions impact his ability to work. Noting the Veteran has missed approximately 5 weeks of work in the previous year and that he cannot bend or carry weight. Accordingly, the Board finds that, when viewing the evidence in the light most favorable to the Veteran, he would not be able to sit or stand for the prolonged periods required by typical sedentary employment available or to concentrate on his job responsibilities due to medication for his service-connected disabilities. The Board finds the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment given his work experience and education level prior to October 20, 2017. Therefore, resolving reasonable doubt in favor of the Veteran, the Board concludes that the criteria for a TDIU are met from September 30, 2010. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. ANDERSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.