Citation Nr: 21028686 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 09-04 495 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from July 14, 2011 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability from service-connected disabilities (TDIU) prior to July 14, 2011 is remanded. FINDING OF FACT From July 14, 2011, the evidence is at least evenly balanced as to whether the Veteran's service-connected left knee, left hip, lumbar spine, and left lower extremity radiculopathy precluded him from being able to secure or follow substantially gainful employment. CONCLUSION OF LAW From July 14, 2011, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1965 to July 1967. This matter was originally on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). A hearing before the undersigned Veterans Law Judge was held at the RO in May 2010. The hearing transcript has been associated with the claims file. This matter was denied in February 2019. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court), and in March 2020, the matter was vacated and remanded to the Board pursuant to a Joint Motion for Remand (JMR). The Board remanded the appeal in November 2020, the directed development has been completed, and the case has returned to the Board. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) from July 14, 2011 is granted. Since the Board's denial of TDIU in February 2019, the Veteran was granted service connection for lumbar spine, lower extremity radiculopathy, and left hip disabilities as secondary to left knee disability. See January 2021 Rating Decision. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). Service connection is in effect for the following disabilities: left knee degenerative joint disease (rated at 30 percent disabling effective July 14, 2011), lumbar spine degenerative joint disease associated left knee degenerative joint disease (rated at 10 percent disabling effective March 29, 2007), left lower extremity sciatic radiculopathy (rated at 20 percent disabling effective April 10, 2008), and left hip limitation of extension (rated at 10 percent disabling effective March 29, 2007). For the time period from July 14, 2011, the Veteran's combined disability evaluation, from a common etiology as secondary to left knee degenerative joint disease, results in a 60 percent combined rating. Since the disabilities are of common etiology, they are considered a single disability for TDIU purposes and for the period from July 14, 2011, the Veteran therefore meets the minimum schedular requirements for TDIU from the date of the claim. 38 C.F.R. § 4.16 (a)(2). In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The term "unable to secure and follow a substantially gainful occupation" has two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran's Social Security Administration (SSA) records show he reported he last worked in 1998 and that he ceased employment due to high blood pressure and implantation of a second pacemaker that resulted in right upper extremity swelling and pain. The Veteran provided a September 2014 VA Form 21-8940 that indicated he left employment in lawn care due to cervical pain. See September 2014 VA Form 21-8940. The Veteran reported he has a high school education. The Veteran's VA medical records show he was found unemployable due to his medical conditions, some of which were service connected. This examiner noted specifically that left knee status post knee surgery, lumbar spine degenerative disc disease, and radiculopathy with associated lower extremity muscle atrophy contributed to the Veteran's employment limitations. The Board notes the determination or finding that a Veteran is unable to secure or follow a substantially gainful occupation is not medical in nature. Indeed, no specialized opinion is required, as this is a determination exclusively within the province of VA adjudicators, including the Board. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner). In support of his claim for a TDIU, the Veteran contended in his May 2015 notice of disagreement that his knee disability caused him to be unemployable. See May 2015 Notice of Disagreement. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected left knee, left lower extremity, lumbar spine, and left hip disabilities, and entitlement to a TDIU is warranted from July 14, 2011, the date the Veteran met the schedular criteria for TDIU. The Veteran has occupational experience as a manual laborer, and he does not have a college education. He does not report any other work experience or training. There is no evidence that the Veteran is qualified for alternative work that might accommodate his limitations due to service-connected disabilities. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). VA examinations show the Veteran has limitation of motion of the lumbar spine and left hip, pain on movement and weight-bearing, and that he experiences fatigue and weakness on repeated use over time. Furthermore, the Veteran manifests radiculopathy of the lower left extremity and his left knee disability is characterized by a limitation of motion of less than 30 degrees. Given the Veteran's limitations in flexion of the left knee, radicular symptoms, limitation of motion of the lumbar spine, and limitation of flexion of the left hip from July 14, 2011, the Board finds the evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from July 14, 2011is warranted. 38 U.S.C. § 5107(b). The Board finds the combined effect of these disabilities warrant a TDIU, however, a TDIU based on a single disability is not warranted at any time during the appeal. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 14, 2011 is remanded. VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. The Veteran does not meet the schedular requirements for TDIU prior to July 14, 2011. The Board notes that a VA database indicates a SSA disability onset date of April 3, 2001. See March 2015 SHARE. However, this determination is not included in the records from SSA. This evidence is pertinent to the period where the Veteran does not meet the schedular criteria for TDIU and should be requested. The AOJ should obtain any outstanding SSA records upon remand. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010) (VA's duty to assist includes obtaining records from SSA when potentially relevant). Here, the record contains the Veteran's assertions of unemployability prior to July 14, 2011 and the above noted evidence showing a disability onset date of April 3, 2001. Referral to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating prior to July 14, 2011 warranted, as the Board has found that the disabilities for which the Veteran is awarded service-connection preclude employability. The matters are REMANDED for the following action: 1. Obtain all records from the Social Security Administration for the Veteran including copies of any decisions made on his claim for Social Security benefits. 2. Refer the claim for TDIU prior to July 14, 2011 to the Director of Compensation Service for consideration of an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.