Citation Nr: 21028613 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-29 553 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from June 11, 2012 is granted. FINDING OF FACT The Veteran's service-connected adjustment disorder with mixed anxiety and depressed mood (rated 50 percent from June 11, 2012 to March 12, 2014, and 70 percent from that date); acne with residual scarring (50 percent from June 11, 2012); sleep apnea (50 percent from August 3, 2012); tension headaches (30 percent from March 12, 2014); left shoulder rotator cuff tendonitis with shoulder impingement and acromioclavicular joint arthritis (20 percent from June 11, 2012); left knee degenerative joint disease status post surgery (10 percent from June 11, 2012); right shoulder tendinitis with spur formation of acromin (10 percent from June 11, 2012); lumbosacral spine degenerative arthritis with disc disease and intervertebral disc syndrome (IVDS) status post laminectomy, discectomy and decompression (10 percent from June 11, 2012); chronic right ankle strain (10 percent from June 11, 2012); left ankle spurring adjacent to distal fibula and calcification of distal achilles tenson (10 percent from June 11, 2012); bilateral pes planus (10 percent from June 11, 2012); right great toe injury status post fracture with residual degenerative joint disease (10 percent from June 11, 2012); hypertension (10 percent from August 3, 2012); left knee instability (10 percent from April 19, 2013); right knee instability (10 percent from March 12, 2014); right knee degenerative joint disease (10 percent from March 12, 2014); right index finger injury with residual discomfort (0 percent from June 11, 2012); deviated nasal septum (0 percent from June 11, 2012); traumatic brain injury (0 percent from June 11, 2012); and posterior trunk scar (0 percent from September 23, 2019) are rated 90 percent combined from June 11, 2012 to August 3, 2012; and 100 percent from that date; they are reasonably shown to have been of a nature and severity that rendered him unable to maintain substantially gainful employment throughout from the earlier effective date of June 11, 2012. CONCLUSION OF LAW The schedular criteria for a TDIU rating were met from June 11, 2012, and a TDIU rating is warranted from that earlier effective [for a total rating] date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1981 to June 2001. This matter is before the Board on appeal from October 2014 (that granted a 70 percent rating for adjustment disorder with mixed anxiety and depressed mood effective March 12, 2014, and continued a 50 percent rating for sleep apnea, 10 percent ratings for left knee and right shoulder disabilities, and a 0 percent rating for traumatic brain injury with headaches) and November 2014 (that continued 10 percent ratings for left knee and right shoulder disabilities) Department of Veterans Affairs (VA) rating decisions. In December 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In May 2019 and September 2020, the matter was remanded for additional development. An October 2014 rating decision granted the Veteran service connection for tension headaches, rated 30 percent; and an increased rating of 70 percent for adjustment disorder with mixed anxiety and depressed mood, each effective March 12, 2014, which resulted in a combined schedular rating of 100 percent from that date. The AOJ letter notifying the Veteran of that rating decision stated that consideration of a TDIU rating was considered prior to the date on which the schedular 100 percent was awarded but the evidence of record did not show that a TDIU rating was warranted prior to March 12, 2014. Additionally, a June 2020 rating decision granted the Veteran service connection for a left shoulder disability, rated 20 percent; left ankle disability, rated 10 percent; and lumbosacral spine disability, rated 10 percent; each effective June 11, 2012, which resulted in a combined schedular rating of 100 percent from August 3, 2012. However, as the issue of entitlement to a TDIU rating was raised in the context of claims for increased ratings, under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), it requires consideration of the entire period of the pendency of those claims (from June 11, 2012). [A February 2021 rating decision granted service connection for a right ankle disability. Accordingly, that matter is no longer on appeal before the Board.] Entitlement to a TDIU rating is granted from the earlier effective date of June 11, 2012. On April 2013 VA examinations, the Veteran reported that he worked in security (patrolling) at the State Department until 2010, when he moved from Maryland to North Carolina; at the time of moving, he could not work any longer due to worsening of his left knee and back conditions. The examiner opined that the Veteran's back condition impacted his ability to work because he was unable to lift more than 15 pounds, he had problems bending, he could not stand in one spot for more than 10 minutes, and he could not sit for more than 10 to 15 minutes. The examiner opined that the Veteran's flatfoot condition impacted his ability to work due to pain with use and with standing for more than 15 minutes. The examiner opined that the Veteran's knee conditions impacted his ability to work because he had prominent tibial tubercle in the left knee compatible with Osgood-Schlatter's disease. The examiner opined that the Veteran's shoulder condition impacted his ability to work due to problems with movements above the head. On November 2013 VA examination, the examiner opined that the Veteran's back condition impacts on his ability to work due to being incapable of lifting anything over 15 to 20 pounds. The examiner opined that the Veteran's knee conditions impact his ability to work due to difficulty bending and inability to run as a security officer. In his March 2014 application for TDIU, the Veteran reported that he became too disabled to work in June 2010, when he last worked full time in security for the State Department, due to his adjustment disorder and sleep apnea. He reported having a high school education, with no additional education or training. In a September 2014 response to a Request for Employment Information, the Veteran's last employer stated that he was employed in armed security until June 2010, when he resigned from the company. On September 2014 VA examination, the examiner opined that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was not working mainly because of physical problems. The examiner opined that his psychiatric symptomatology would be expected to cause moderate impairment of occupational reliability and productivity if he were able to work from a physical point of view. The examiner opined that the Veteran's headache condition would cause some occasional brief difficulty working because of severe headaches, perhaps for 30 to 60 minutes per month on average. On September 2014 VA examination, the examiner opined that the Veteran's back condition impacted his ability to work, noting the Veteran's report that he was unable to secure a job because of his chronic absence and employers' doubts as to his capabilities after noting his back and knee problems. On December 2018 private vocational assessment, the evaluator opined that the symptoms associated with the Veteran's psychiatric disability, sleep apnea, and tension headaches secondary to traumatic brain injury represent a significant disabling condition. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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 Veteran service-connected disabilities are: adjustment disorder with mixed anxiety and depressed mood (rated 50 percent from June 11, 2012 to March 12, 2014, and 70 percent from that date); acne with residual scarring (50 percent from June 11, 2012); sleep apnea (50 percent from August 3, 2012); tension headaches (30 percent from March 12, 2014); left shoulder rotator cuff tendonitis with shoulder impingement and acromioclavicular joint arthritis (20 percent from June 11, 2012); left knee degenerative joint disease status post surgery (10 percent from June 11, 2012); right shoulder tendinitis with spur formation of acromin (10 percent from June 11, 2012); lumbosacral spine degenerative arthritis with disc disease and intervertebral disc syndrome (IVDS) status post laminectomy, discectomy and decompression (10 percent from June 11, 2012); chronic right ankle strain (10 percent from June 11, 2012); left ankle spurring adjacent to distal fibula and calcification of distal achilles tenson (10 percent from June 11, 2012); bilateral pes planus (10 percent from June 11, 2012); right great toe injury status post fracture with residual degenerative joint disease (10 percent from June 11, 2012); hypertension (10 percent from August 3, 2012); left knee instability (10 percent from April 19, 2013); right knee instability (10 percent from March 12, 2014); right knee degenerative joint disease (10 percent from March 12, 2014); right index finger injury with residual discomfort (0 percent from June 11, 2012); deviated nasal septum (0 percent from June 11, 2012); traumatic brain injury (0 percent from June 11, 2012); and posterior trunk scar (0 percent from September 23, 2019). The combined schedular rating is 90 percent from June 11, 2012 to August 3, 2012; and 100 percent from that date. The schedular rating requirement for a TDIU rating in 38 C.F.R. § 4.16(a) has been met from June 11, 2012. The analysis turns to whether service-connected disabilities rendered him unemployable from that date. Considering the effects of the service-connected disabilities on employability, the Board finds significant, in support of the Veteran's claim, the opinions of the VA examiners discussed above, each based on a review of the complete record, interview of the Veteran, and physical/mental examination. The Board has no reason to question those opinions, and finds they support, in part, that he was unable to maintain employment consistent with his education and work experience. Most notable are the April 2013 VA examiner's opinions that his back condition resulted in inability to lift more than 15 pounds, bend, stand in one spot for more than 10 minutes, or sit for more than 10 to 15 minutes; his flatfoot condition caused pain with use and with standing for more than 15 minutes; he had a prominent tibial tubercle in the left knee compatible with Osgood-Schlatter's disease; and his shoulder condition caused problems with movements above the head; the November 2013 VA examiner's opinion that the Veteran's knee conditions caused difficulty bending and inability to run as a security officer; and the September 2014 VA examiners' opinions that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity even if he were able to work from a physical point of view; and his headache condition would cause some occasional brief difficulty working because of severe headaches. In addition, the Board notes that the treatment records, examinations, and statements by the Veteran, discussed above, regarding the limitations caused by his service-connected disabilities support his claim for TDIU. Significantly, he has a high school education with no additional training, and the vast majority of his occupational experience has been as a security officer. On review of the record the Board finds that the overall disability picture presented by the service-connected disabilities from June 11, 2012 has been one reasonably shown to preclude him from maintaining any regular substantially gainful employment consistent with his education and experience. The Board acknowledges that he has comorbid, non-service-connected, disabilities which also substantially contribute to his unemployability, but finds that even disregarding the effects of such disabilities, he is nonetheless shown to have been unemployable due solely to his [service-connected] disabilities from June 11, 2012. Significant in this regard is that in addition to his psychiatric disability, which substantially impairs his ability to engage in the types of work consistent with his education and experience, his many service-connected disabilities include back, shoulder, and bilateral knee disabilities which cause pain with sitting, standing, or walking for a long time, which is inconsistent with security officer employment. Considering the cumulative effect of the functional impairment flowing from the Veteran's separate service-connected disabilities, the Board finds that such disabilities are reasonably shown to have been of a nature and severity that precluded him from participating in any regular substantially gainful employment consistent with his education and occupational experience throughout, from June 11, 2012. A TDIU rating is warranted from the earlier effective date of June 11, 2012. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.