Citation Nr: 21028671 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-20 455 DATE: May 11, 2021 ORDER Entitlement to total disability due to individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities are of sufficient severity to produce unemployability prior to October 7, 2020. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1976 to November 1977. In June 2019, the Veteran testified at a Board hearing. The transcript is of record. In November 2019, the Board remanded the case for further development, which is completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's claims of entitlement to service connection for unspecified depressive disorder and fibromyalgia were granted in a January 2021 rating decision. As such, this issue is no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. The Board notes that the Veteran provided a statement in support of claim expressing disagreement with the effective dates assigned for his service connection claims for unspecified depressive disorder and fibromyalgia. See Statement in Support of Claim February 2021. The January 2021 rating decision is an initial decision as it first addresses the downstream issues of proper effective date. As such, even though the Veteran's claim was initiated in the legacy system, the rating decision granting service connection was issued after February 19, 2019; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies and the issues of entitlement to an earlier effective date must be appealed and adjudicated under the AMA. See 38 C.F.R. § 3.2400(a)(1). Accordingly, to pursue the claims for entitlement to an earlier effective date the Veteran must file a notice of disagreement selecting a review option on the appropriate form within one year of the date of notification of the January 2021 rating decision. 1. Entitlement to TDIU The Veteran contends that he is entitled to TDIU prior to October 7, 2020. He filed a claim received August 28, 2015 alleging that he became too disabled to work as of May 4, 2015 due to his service-connected bilateral knee condition and left ankle condition. In November 2019 the Board remanded the issue of TDIU for readjudication following the effectuation of the grant of service connection for degenerative disc disease of the spine, sacroiliac joint strain, degenerative arthritis of the cervical spine, bilateral arthritis of the hips. A supplemental statement of the case dated January 2021 denied the claim for TDIU. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. In this case, the Veteran had a combined disability rating of at least 80 percent for the period at issue for unspecified depressive disorder, bilateral knee conditions, left ankle condition, radiculopathy of the upper extremities, osteoarthritis of the bilateral hips, cervical spine degenerative arthritis, and degenerative disc disease. Thus, the schedular requirements for a TDIU are met. 38 C.F.R. § 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's work history consists of convenience store manager from August 2000 to May 2015 and an educational background consisting of an associate degree. The evidence of record includes Social Security Administration (SSA) records. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran filed for disability with SSA on May 13, 2015 due to diabetes, neuropathy of the feet, vision problems, fibromyalgia, osteoarthritis, and knee conditions and alleged that his biggest problem was pain, which interfered with his ability to concentrate. The residual functional capacity determined the Veteran was capable of sedentary work as he could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand for a total of four hours and sit for about six hours in an eight hour day but ultimately SSA found the Veteran disabled. The Veteran's medical records reveal ongoing treatment for his service-connected conditions. He underwent several surgeries, physical and occupational therapies, injections, and chronic pain management with narcotics, such as Vicodin. He also attended several VA examinations. In June 2015 at the VA examination for mental disorders the Veteran reported difficulty concentrating due to pain and having arguments with supervisors, which contributed to his decision to leave his job. The behavioral observations noted that while memory for recent and remote events seemed intact, he sometimes expressed difficulty recalling things. The examiner reported symptoms of depressed mood, mild memory loss and disturbance of motivation and mood and concluded that the Veteran had an occupational impairment with occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks. At the hip examination, the Veteran expressed that his hip conditions complicated his other disabilities, which led to early retirement. The physical examination confirmed limitation of motion of the hips. For his knees, the examiner reported that frequent bending, squatting, ladder and stair work, or standing for long periods of time would be limiting in terms of progression but found no limitations in terms of more sedentary activity. At a subsequent knee examination just a few months later, the examiner concluded that the Veteran was able to lift 20 to 30 pounds but not repetitively, and had difficulty with carrying five to 10 pounds, prolonged standing, squatting, and bending. For his ankle the Veteran's functional limitations included the inability to stand longer than 10 minutes when holding something and walking more than a few blocks. At the January 2016 VA examination for neck conditions the Veteran reported being unable to lift or stand and that his pain medications clouded his thinking. The examiner noted that the Veteran was able to remove and put back on his shoes, socks, pants and get on and off the examination table independently. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran testified at a Board hearing in June 2019 that he has remained unemployed since May 2015. He described being unable to continue his employment due to pain and difficulty thinking clearly from his pain medications. The Veteran reported only being able to stand for about five minutes without pain and sitting for approximately 30 minutes before needing to change positions. For purposes of this case, the Board defines sedentary as exerting up to 10 pounds occasionally (1/3 of the time) and/or a negligible amount of force frequently (1/3 to 2/3 of the time), lifting, carrying, pushing, pulling or otherwise moving objects, to include the human body, sitting most of the time and possibly walking or standing for brief periods (occasionally). The overall evidence reveals that the Veteran had difficulty with standing, sitting, lifting, carrying, and fine motor skills due to numbness and tingling in the fingers, which would have impacted the Veteran's ability to engage in most types of employment. Additionally, his service-connected mental condition resulting in a depressed mood, mild memory loss and disturbances of motivation and mood, which along with his dexterity issues make it apparent that even sedentary employment would have been problematic. Also, of significance is the effects of the Veteran's chronic use of narcotics for pain management for service connected conditions causing difficulty with focus and concentration. As such, the combined effects of the Veteran's service-connected conditions, to include his treatments for these conditions, rendered him incapable of performing the physical and mental acts required by employment. Accordingly, the Board finds that the evidence supports a finding of TDIU prior to October 7, 2020 and the claim is granted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.