Citation Nr: 21029332 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-35 475A DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities render them unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1997 to January 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). Entitlement to a TDIU The Veteran contends that their service-connected disabilities, particularly the service-connected vascular headaches associated with hypertension (headaches), contribute substantially to their unemployability. 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. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). 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 nonexertional) 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 they are 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). Service connection is in effect for the following disabilities: obstructive sleep apnea, headaches, status post right ankle fracture with traumatic degenerative disease (right ankle disability), radiculopathy of the bilateral lower extremities, lumbar spondylosis (lumbar spine disability), hypertension associated with obstructive sleep apnea, and erectile dysfunction associated with hypertension. For the appeal period, the Veteran's combined disability evaluation was 80 percent prior to February 25, 2016, and 90 percent thereafter. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and their combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. On their August 2013 TDIU application, the Veteran indicated that they finished high school, and 2 years of college. According to the DD-214, the Veteran's military occupational specialty (MOS) was a medical sergeant. July 2014 VA Vocational Rehabilitation records note that the Veteran completed an Associate Degree in Medical Science EKG Technician, and EMT certification in 1998, although that had since expired. The records also show that the Veteran was a cardiogram technician at a hospital from 2001 to 2002, and a district manager at an automotive parts store from 1999 until 2013. In March 2014, the RO obtained a Compensation Disability Benefits Questionnaire (DBQ) to assess how the service-connected disabilities affected the Veteran's employability. The examiner opined that the headaches moderately to severely limited the Veteran from obtaining and maintaining gainful employment in a physical and sedentary occupational environment. The spine was found to severely limit the Veteran from obtaining and maintaining gainful employment in a strenuous or physical occupational environment due to limitations on lifting, pushing, and pulling; but, the spine did not limit the Veteran from obtaining and maintaining gainful employment in a sedentary occupational setting. The right ankle severely limited the Veteran from obtaining and maintaining gainful employment in a strenuous and physical occupational environment due to limitations on climbing, walking, and standing; but, the ankle did not limit the Veteran from obtaining and maintaining gainful employment in a sedentary occupational setting. And the examiner opined that the sleep apnea severely limited the Veteran from obtaining and maintaining gainful employment in a physical and sedentary occupational environment. According to a July 2014 VA Employment Capacities Form, in an 8 hour work day the Veteran was found to be limited to: 1) standing/walking 2-4 hours at one time, and 2-4 hours per day; 2) sitting 2-4 hours at one time; 3) driving 1-3 hours per time; 4) lift/carry up to 10 pounds; 5) no restrictions in repetitive hand movement; 6) no restrictions in repetitive foot movement; 7) able to balance; and 8) occasionally able to bend, squat, kneel, climb, reach, twist, rotate, and crawl. The examiner found that environmental factors like noise and bright lights make the migraines worse, and that the Veteran was receiving treatment. The examiner opined that the Veteran was capable of working part-time, with no restrictions interacting with people, but that they needed a low stress environment for the migraines, as they had a decreased ability to focus during migraine episodes. July 2014 VA Vocational Rehabilitation documents found that the service-connected conditions do contribute in substantial part to the Veteran's impairments to employment, specifically to jobs requiring prolonged standing, walking, pushing, climbing, pulling, heavy lifting, high stress environments, and lots of lights. The examiner found that the disabilities impact the Veteran's ability to obtain and maintain employment in some fields and will likely affect their ability to obtain, retain, and maintain employment as their transferable military and civilian sector skills are not feasible due to physical requirements and high stress working environments. The examiner opined that the Veteran met the criteria for an employment handicap due to the fact that the service-connected disabilities contribute in substantial part to the vocational impairment, and that the Veteran had not overcome the effects of the impairment through further education, transferable skills, or obtaining and maintaining suitable work. Per October 2014 VA Vocational Rehabilitation documents, the Veteran had indicated that their doctor had told them that they could work part-time, but only if the employer would accommodate and flex the work schedule to accommodate the headaches. Another VA doctor completed an October 2014 VA Employment Capacities Form, with the same findings of the July 2014 examination. In October 2014, a VA Vocational Rehabilitation examiner determined that the Veteran was infeasible for vocational services due to the service-connected sleep apnea, headaches, right ankle, lumbar spine with radiculopathy, and hypertension, as well as non-service-connected hematuria and leukopenia. The examiner opined that the Veteran was very limited in their ability to return to employment, which was concurred by the Veteran's VA primary care physician (PCP). The examiner stated that the Veteran was on medication that could interfere with their ability to work, and due to increasing symptoms with the chronic migraines, the Veteran was unable to work in environments that endure stress. The examiner stated that per the Veteran's PCP, the Veteran was not stable enough to return to the work force, and therefore it was infeasible for further vocational rehabilitation services. In a November 2014 statement, the Veteran asserted that their physician and VA Vocational Rehabilitation had found them unable to work. In November 2014, the Veteran submitted a VA Headaches DBQ filled out by their VA PCP who found that the service-connected headaches cause frequent debilitating attacks. According to a February 2015 DBQ, the sleep apnea was found to prevent physical employment due to limitations to pushing, pulling, lifting, and carrying; but the sleep apnea did not prevent sedentary employment. The examiner found the headaches and hypertension would not prevent physical or sedentary employment, although the headaches may cause an increase in work missed. April 2015 VA records found that the spine had functional loss, including limited standing, sitting, lifting, and walking. April 2016 VA records found the spine had functional impact with discomfort with prolonged sitting. June 2016 VA records noted that the headaches would cause the Veteran to have to miss work occasionally, but there were no restrictions noted to physical or sedentary work. The records also note there were no restrictions to physical or sedentary work for the sleep apnea. In a July 2016 VA Form 9, the Veteran asserted that they met the schedular requirements for TDIU, and qualify because the headaches occur very frequently on a daily and weekly basis, and prevent them from sustaining any form of gainful employment. The Veteran stated that they are unable to concentrate on any type of task during a headache, and that they have attempted to sustain employment but have been unable to do so. April 2017 private treatment records (PTRs) indicate that the low back pain affected activities of daily living and quality of life, including interference with daily chores, employment, exercise, sleeping, and walking. January 2018 VA treatment records note that the radiculopathy has functional loss including impaired balance and mobility. May 2018 VA records note that the lumbar spine has a functional impact on the ability to work, including difficulty sitting, standing, and walking for extended periods. July 2018 VA records note that the erectile dysfunction has no functional impact on the ability to work. September 2018 VA records note that the hypertension and erectile dysfunction do not impact the ability to work. After a thorough review of the record, the Board resolves reasonable doubt in the Veteran's favor and finds that a TDIU is warranted. In favor of the Veteran's claim are the VA records generally describing how the Veteran's service-connected disabilities, chiefly the headaches, impact their ability to perform physical and sedentary employment. The March 2014 DBQ found that the headaches moderately to severely limit the Veteran's employability in a physical and sedentary environment, that the spine and right ankle severely limited their employability in a physical environment, and that the sleep apnea severely limited their employability in both a physical and sedentary environment. The Board affords the July 2014 VA Vocational Rehabilitation records great probative value because they reflect thorough consideration of the symptoms of the Veteran's service-connected disabilities and how they affect the ability to obtain and retain employment. These records found that the Veteran met the criteria for an employment handicap due a substantial vocational impairment that the Veteran had not been able to overcome. The Board also affords probative value to the October 2014 VA Vocational Rehabilitation records that determined that vocational rehabilitation was infeasible for the Veteran due to their service-connected disabilities and non-service-connected disabilities. These records carefully considered both the medical and vocational record in determining that the Veteran's increased symptoms made the Veteran unable to work in stressful environments. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Also in favor is the November 2014 DBQ that found that the headaches cause frequent debilitating attacks, the February 2015 DBQ that found that the sleep apnea would prevent physical employment, the April 2015, April 2016, and May 2018 VA records that found the spine contributed to functional loss, and the January 2018 VA records that found the radiculopathy contributes to functional loss. Against the Veteran's claim is the March 2014 VA DBQ that found that the spine disability did not limit the Veteran's employability in a sedentary environment, and the July 2014 VA Employment Capacities Form that found that the Veteran was capable of working part-time if in a low stress environment. Additionally, against the claim is February 2015 VA DBQ that found the sleep apnea did not prevent sedentary employment, and that the headaches and hypertension did not prevent physical or sedentary employment. Also, against the claim are the June 2016 VA records that found that while the headaches would cause the Veteran to have to miss work occasionally, there were no restrictions noted to physical or sedentary work, to include due to sleep apnea. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The Board acknowledges the inconsistencies in findings regarding whether the Veteran is capable of sedentary or physical work, at times VA examiners have found the Veteran capable and incapable of both types of labor, even for the same disability, including the service-connected headaches. While the July 2014 VA Employment Capacities examiner noted that, even considering the headaches, the Veteran was capable of working part-time in a low stress environment, and the June 2016 examiner found the Veteran would have no restrictions other than allowing for missed work due to the headaches, these examiners do not appear to address the practicality of finding such work. The Veteran's employment history as both a sales district manager and a medical technician are both in high stress environments, and such positions would have other people relying on them significantly. Finding positions of this type that would allow unpredictable and frequent absences due to prostrating headaches without negatively affecting their performance and standing with their employer would likely be highly difficult. VA Vocational Rehabilitation appears to have considered this in determining that the Veteran's service-connected disabilities contribute substantially to an impairment to employment, that the Veteran met the criteria for an employment handicap, and that further vocational rehabilitation was infeasible. Therefore, based on the various probative sources, the Board finds the evidence is at least in equipoise in the Veteran's favor as to whether the Veteran's service-connected disabilities preclude the Veteran from the ability to secure and follow a substantially gainful occupation consistent with their education, skills, training, and work history. Accordingly, a TDIU is warranted. The Board also notes that in the February 2021 appellate brief, the Veteran's representative requested that special monthly compensation be granted as well. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). This duty to maximize benefits requires VA to assess all of a veteran's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. Bradley, 22 Vet. App. at 294 (finding that SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim). SMC is payable at a specified rate to a Veteran under 38 U.S.C. § 1114(s) when a Veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s). Here, SMC benefits are not warranted in this case as the Veteran does not have a single disability rated as total. While the Veteran now has a TDIU, as noted above, it was not granted based on a single disability, but rather a combination of the Veteran's service-connected disabilities. See Bradley, 22 Vet. App. at 293 (2008) (holding that a TDIU rating could qualify for compensation at the 38 U.S.C. § 1114 (s) rate, but only if the TDIU was based on a single disability). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.