Citation Nr: 21028773 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-05 600 DATE: May 12, 2021 ORDER Entitlement to a total disability due to individual unemployability (TDIU) rating from January 15, 2020 is granted. REMANDED Entitlement to a TDIU for the rating period prior to January 15, 2020 on an extraschedular basis is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, from January 15, 2020, the Veteran's service-connected disabilities precluded all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating are met beginning January 15, 2020. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from July 1972 to April 1974. This claim comes before the Board of Veterans Appeals (Board) from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The JMPR In a May 2020 decision, the Board denied entitlement to a total disability due to individual unemployability and issued determinations on other claims including for increased rating for irritable bowel syndrome (IBS). The Veteran appealed the determination of entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2020 Joint Motion for Partial Remand (JMPR), the Court issued an order that the Board's determinations as to other claims would not be disturbed; however, the Board's May 2020 decision regarding a TDIU was remanded to the Board for action consistent with the JMPR. Specifically, the Parties to the JMPR, the Veteran and the Secretary of the VA, found that the Board failed to provide an adequate statement of reasons or bases for its denial of entitlement to a TDIU rating. Further, the Board erred when it found that "there was no increased rating appeal before the Board concerning any disability other than irritable bowel syndrome" under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Parties agreed that upon remand, the Board should apply the guidance the Court set out in Ray concerning its analysis of TDIU which explained that, in determining whether a veteran can secure and follow a substantially gainful occupation, "attention must be given" to the veteran's history, education, skill, and training, and to whether the veteran has the physical and mental ability to perform the type of activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). TDIU Laws To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran works and without regard to the Veteran's earned annual income." Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of one or more service-connected disabilities without regard to advancing age. 38 C.F.R. §§ 3.341 (a), 4.16(a). If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2019); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful" employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). Entitlement to a total disability due to individual unemployability (TDIU) The Veteran's service-connected disabilities (i.e. irritable bowel syndrome (IBS), anxiety disorder, tinnitus and noncompensable scar, hemorrhoids, and right ear hearing loss) result in a 70 percent combined disability rating as of January 15, 2020 due to an increased rating for his anxiety disorder. As such, from January 15, 2020, the Veteran meets the rating percentage standards for a TDIU under 38 C.F.R. § 4.16(a). Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment from January 15, 2020. The Veteran's formal TDIU application received in April 2020 indicates that the document did not represent a new claim for a TDIU but was submitted as part of his increased rating claims for IBS filed on September 17, 2017. The Veteran indicated that his generalized anxiety disorder, tinnitus, IBS, hemorrhoids, right thumb scar and right ear hearing loss prevented him from securing or following any substantially gainful occupation. The Veteran noted that he obtained his GED in service and is one credit shy of an associate degree in criminal justice. His employment history reflects that he owned a locksmith business through 2010, worked as a branch manager at a security equipment company for six months in 2011, and was a cashier with flexible hours at a liquor for two and a half years The evidence includes a VA gastroenterology consult in November 2018 in which the Veteran described intermittent bouts of diarrhea with abdominal cramping. He was prescribed fiber capsules and advised to use Kaopectate as necessary. During a February 2019 VA examination for gastrointestinal disorders, the Veteran reported a 40-year history of IBS which presently caused weekly instances of diarrhea, with more frequent abdominal cramping at 6 times per month that he has not been treating with anything other than Kaopectate. The Veteran described occasional difficulty making it to the bathroom. He also mentioned a history of hemorrhoids but no treatment recently. Colonoscopy in December 2015 revealed mild left-sided diverticulosis, two polyps which were excised and mild internal hemorrhoids. In April 2020 VA received a Vocational Assessment prepared by a certified rehabilitation counselor and a comprehensive statement from the Veteran regarding his employability dated January 2020. The Vocational Assessment referenced the Veteran's daily psychiatric symptoms that have increased at least since August 2017 causing chronic anxiety, the need to isolate due to difficulty interacting with others, irritability, and suspiciousness; impaired motivation, memory, and concentration; and sleep disturbance. The Veteran's tinnitus and his hearing loss impairs communication with others. During the telephone interview, the Veteran asked the consultant to repeat questions and speak at a higher volume, in addition to the Veteran occasionally forgetting the question that he was asked. With respect to his IBS, the Veteran indicated that he experiences unpredictable urges to void, and travels with a bucket in his vehicle. These frequent urges made it difficult to work without interruption. The Veteran graduated from the Police Academy after withdrawing from community college. At his last employment as a cashier at a liquor store he was disciplined and then resigned as he had interpersonal difficulties with his coworkers and had to frequently leave the front of the store or leave work early due to IBS symptoms. His job as branch manager for a security equipment company involved disagreements with the owner and other employees which lead to his termination after 6 months. As owner of the locksmith business, he could take as many unscheduled breaks as he needed. The counselor offered his opinion that the Veteran's service-connected conditions and associated limitations in concentration completely erode any transferable skills acquired throughout his vocational history and his ability to learn new skills. The vocational counselor concluded that the Veteran has been unable to secure and follow substantially gainful employment since at August 2017 due to his service-connected conditions. During a June 2020 VA disability examination for mental health disorders, the examiner modified the Veteran's diagnosis to adjustment disorder, with mixed features of anxiety and depression noting that his anxiety and panic disorder was circumscribed as when the Veteran is with others he is distracted from worry such that it does not interfere with his activities. The examiner extracted information from treatment notes including that the Veteran had been living apart from his wife of 47 years who has bipolar disorder. He lives in a 55 plus community, close to his oldest son, but does not interact much with others in the community. He is presently running for the Board of Directors of his condominium association. He was anxious about not speaking with his youngest son who has been disrespectful. The Veteran indicated that his IBS symptoms prevent him from engaging in many activities although he noted that on days when he is not having a flare-up, he still is not motivated to engage in activities. Objective evidence of extreme overreporting of symptoms, which made assessment of the frequency and severity of symptoms more difficult, was noted by the examiner. The examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In his lay statement, the Veteran reiterated the difficulties that he disclosed to the VA examiner and the rehabilitation counselor. He indicated that he voluntarily retired in 2016 as he was experiencing debilitating symptoms of his IBS which caused him to need frequent and irregular breaks and to be irregular in his hours, and his hearing loss and tinnitus was frustrating to customers and coworkers as he constantly asked them to repeat themselves. Based on the foregoing, and with resolution of any reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU are met as the evidence reflects that the Veteran is unable to secure or maintain a substantially gainful occupation due to his service-connected disabilities. As noted, the Veteran has been found to have difficulties with IBS, anxiety symptoms, hearing loss and tinnitus. The Board finds that the combination of these restrictions would significantly limit the Veteran's ability to perform any occupational task. As such, the Board resolves doubt in the Veteran's favor in finding that he is unable to obtain or maintain substantially gainful employment consistent with his educational and work background as of January 15, 2020. Therefore, the Veteran's TDIU claim is granted from January 15, 2020. 38 C.F.R. § 4.16(a). REASONS FOR REMAND Remand is necessary to refer, for extraschedular consideration, the Veteran's TDIU claim for the rating period on appeal prior to January 15, 2020. The Board notes that prior to January 15, 2020, the Veteran's service-connected disabilities, when combined, were rated as only 60 percent disabling. Thus, prior to January 15, 2020, the Veteran did not meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The evidence during the rating period from August 31, 2017 indicates that the Veteran's disabilities may have precluded employment. During a vocational assessment and VA mental health disability examination the Veteran reported that service-connected symptoms resulted in his leaving part-time employment in April 2016. See also Veteran's VA Form 21-8940. Given that the evidence reflects that the Veteran may have experienced difficulty obtaining and maintaining employment due to his service-connected disabilities during the period on appeal from August 31, 2017 to January 14, 2020, and given that the Board is precluded from awarding extraschedular TDIU in the first instance, on remand the Veteran's claim must be referred to VA's Director, Compensation Service, for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following actions: 1. Refer the Veteran's claim for entitlement to an extraschedular TDIU for the rating period from August 31, 2017 to January 14, 2020 to the Director, Compensation Service, for consideration TDIU under 38 C.F.R. § 4.16(b). (Continued on the next page) The Director is asked to consider whether the Veteran's disabilities warrant an extraschedular TDIU for the rating period from August 31, 2017 to January 14, 2020. (NOTE: The Veteran was rated with a combined 60 percent disability rating for the period of August 31, 2017 to January 14, 2020). 2. After completing the above development and any other development deemed necessary, readjudicate the issue for extraschedular TDIU consideration for the period from August 31, 2017 to January 14, 2020. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his attorney, and allow for an adequate period of time for response. Thereafter, return the appeal to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.