Citation Nr: 21029528 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-27 518 DATE: May 13, 2021 ORDER Entitlement to a finding of individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1977 to December 1980 and from September 1981 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2019 decision, the Board denied the Veteran's claim for TDIU. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted the joint motion for partial remand, vacating the Board's July 2019 decision as to the denial of TDIU, and returned the matter to the Board for review. The Veteran has submitted additional evidence in support of his claim and waived RO consideration of that evidence. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he 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). If not, all veterans who shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service, for extra-schedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. During the pendency of the appeal, the Veteran has been service connected for left ankle disability rated at 20 percent disabling; right ankle disability rated at 20 percent disabling; right knee disability rated at 10 percent prior to June 5, 2017, and 20 percent from June 5, 2017; right knee instability rated at 10 percent disabling; bursitis of the left hip rated at 10 percent disabling; left knee strain rated at 10 percent disabling; and right knee scar rated at 10 percent disabling. Because the Veteran's disabilities, aside from scar, involve the orthopedic system, taken together, they satisfy the minimum schedular requirements for a single disability rated as 60 percent under 38 C.F.R. § 4.16(a). The central inquiry is whether the Veteran's service-connected disabilities render him unemployable. In this regard, the question is "whether [a] 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 a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his application for TDIU, signed in May 2018, the Veteran stated that his left ankle, right knee, left hip, right hip, left knee, hypertension, and back disability rendered him unable to secure and follow a substantially gainful occupation. He stated that his conditions first impacted full-time employment in November 2010 and that he last worked full-time on October 12, 2012. He stated that he became too disabled to work on October 12, 2012. The Veteran stated that he most recently worked for J Construction in a warehouse from January 2012 to October 2012, working 40 hours per week. He previously worked for A Design at a receiving warehouse for 40 hours per week from January 2005 to September 2011. He marked "no" when asked if he left his last job because of his disability. The Veteran noted that he had received a high school education and had graphic design training in the 1970s. In an April 2004 statement, the Veteran's physician, Dr. B, found that the Veteran's depression was compounded by severe chronic pain in the knees and that due to stressors of work and injury, he was unable to fulfill his duties as a mechanic. An October 2010 VA examination report shows reports of chronic pain in the knees, hips, and ankles, and that he currently worked as a warehouse worker. The examiner noted that the Veteran's right knee condition affected walking at more than 200 feet, climbing stairs, and lifting over 30 pounds. The Veteran indicated that his medications had not impacted work. The examiner found that the Veteran had mild functional limitations regarding his ankles and right knee and that he would be employable in sedentary and light duty occupations consistent with his education and experience. In December 2011, the Veteran reported that he was unable to work and a danger to himself and others due to medications that he was prescribed. In a June 2012 VA treatment record, the Veteran stated that he was fired from his prior job because of hazards associated with morphine. SSA records show that the Veteran filed for disability benefits in November 2012 and he alleged that he was disabled since October 5, 2012. The Veteran was granted SSA disability benefits and the favorable decision determined that the Veteran had not engaged in substantial gainful activity since October 5, 2012, and that the Veteran had severe impairments consisting of arthritis of the knees and a partial right rotator cuff tear. An April 2013 disability examination shows that the Veteran reported that both knees, ankles, and hips hurt at varying times. A June 2017 VA examination for the knees reveals that the Veteran reported functional impairment and loss described as no climbing, prolonged standing, or walking. When addressing functional impact on ability to perform occupational tasks, the examiner stated that the Veteran could not engage in prolonged standing or walking and no running. The sedentary position was unlimited. The examiner found that the Veteran could function normally in a clerical or computer input employment with minimal walking or standing. A June 2017 VA examination for the hips reflects that the Veteran reported functional impairment and loss described as no prolonged standing or driving a car. When addressing functional impact on ability to perform occupational tasks, the examiner sated that the Veteran could not engage in prolonged standing or walking and no running. The sedentary position was unlimited. The examiner found that the Veteran could function normally in a clerical or computer input employment with minimal walking or standing. In November 2018, the Veteran's prior employer, A. Design, noted that he was employed from January 2006 to August 12, 2011. The Veteran worked in the warehouse and earned approximately $35,107.25. The reason for termination was a reduction in workforce. In a statement received by VA in June 2018, the Veteran's prior employer, J Construction, noted that the Veteran started his employment on January 10, 2012, and ended on October 12, 2012. He worked in receiving and in the warehouse. He worked 40 hours per week and there were no concessions made to the Veteran by reason of age or disability. The reason for termination of employment was restructuring. He last worked on October 12, 2012. The prior employer noted that it was too long ago to remember the amount of the last payment. VA treatment records show reports of bilateral knee pain, use of a right knee brace, and hip pain. VA treatment records also show that the Veteran was prescribed morphine for his pain. In March 2021, a vocational consultant, SF, provided an assessment and opinion regarding the Veteran's ability to work. She recited the Veteran's service-connected disabilities, reviewed the claims folder, and completed a telephone interview with the Veteran and his wife. The Veteran confirmed that he experienced symptoms from his service-connected disabilities for many years and that they impacted his activities of daily living and quality of life. He reported constant swelling of the knees and ankles worsened by standing and walking; constant bilateral knee pain worsened by standing and walking; spent majority of the day with his feet elevated in a recliner; inability to walk more than 200 feet or climb stairs due to knee, hip, and ankle pain; frequent changing of positions due to inability to stand, walk, or sit for extended periods; inability to walk on uneven surfaces or left ankle gives out; use of a cane and ankle and knee braces for walking; constant left ankle pain; walked with a limp; left hip flare-ups during rest and walking; constant left hip pain; unable to drive for prolonged periods; left hip condition caused pain with walking, standing, sitting, bending and lifting more than 5 pounds; and right knee scar caused pain and itching that was distracting. The Veteran's wife reported that they lived with their nephew and the nephew had to help the Veteran up when he fell because the Veteran was unable to get himself up. SF also discussed the Veteran's work history and eduction consisting of a high school education. She stated that the Veteran's remote work history was significant for various positions in the U.S. Postal Service and that he was most recently employed in warehouse receiving at Air Design Systems and J. Construction. The Veteran indicated that he was the only employee allowed a desk and chair to complete work tasks due to increased pain he experienced with prolonged standing and walking. However, even with that accomodation, he was unable to perform the duties required for that position and left in October 2012. SF explained that vocational consultants rely on the U.S. Department of Labor's resource that catalogs over 12,000 occupations in the national economy and address the demands and conditions of each condition. She determined that the Veteran's most recent civilian occupation was most appropriately characterized as inventory clerk with a medium physical demand but performed at heavy and semi-skilled. SF found the Veteran a credible reporter of his conditions and reviewed the medical evidence. She stated that the Veteran's service-connected conditions have more likely than not precluded him from performing the full range of physical requirements of even sedentary employment. She explained that while sedentary work is predominantly performed seated, it also required an employee to stand and walk. However, due to the Veteran's service-connected disabilities, he was unable to sit, stand, or walk for any extended period of time. SF discussed medical evidence including an October 2010 VA examination, an April 2013 disability examination for SSA benefits, 2017 VA examination reports, and VA treatment records. SF found that the Veteran' instability to stand or walk for extended periods would preclude him from standing and walking for up to one-third of a workday, as is required in even sedentary employment. Though sedentary work is primarily performed seated, SF stated that the Veteran's left hip and bilateral knee disabilities interfered with his ability to remain in seated position for extended periods without frequently alternating his position. She found that the Veteran's limitations in sitting, standing, and walking would at least as likely as not preclude the Veteran from performing the full range of physical requirements of even sedentary employment on a consistent and reliable basis. She also indicated that his disabilities would distract him to an extent that would contribute to his inability to sustain concentration on work tasks for extended periods and excessive time spent off work. Finally, SF noted that because of the Veteran's service-connected disabilities, he was more likely than not unable to perform work tasks at competitive levels. Even considering that the Veteran's past work was semi-skilled, it was performed at the medium to heavy physical demand level and the skills obtained through this work would not readily transfer to sedentary work without additional training. Further, aside from on-the-job training, the Veteran had not completed any education beyond high school, which did not provide a meaningful advantage at even the unskilled sedentary level. Therefore, SF opined that it was more likely than not that the Veteran had been unable to secure and follow substantially gainful employment at even the sedentary physical demand since at least August 2011 to the present. The Veteran's attorney has argued, that in addition to the Veteran's physical limitations such as limitation on walking and climbing, as well as instability of his ankle, the Veteran also experienced irritability when his pain was high making it difficult to get along with others and that his morphine use prevented him from working effectively. Considering the above, the Board finds that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. The Board finds the medical evidence demonstrating the limitations of the Veteran's service-connected right knee, bilateral ankle, and left hip disabilities coupled with the vocational expert's opinion and the Veteran's own credible lay statements regarding his limitations at work very persuasive of the Veteran's limitations and how those translate to work-related tasks. The vocational consultant described how the Veteran's symptoms impacted his ability to work, including positions that allow for more sitting, to include his constant pain, diminished concentration, the need for excessive time off from work, and limitations in standing, walking, and lifting more than 5 pounds. In addition, the Board finds the Veteran competent and credible to attest to the effects of morphine on his ability to work, his reports that he spends most of the day elevating his legs to alleviate symptoms, and his irritability with others when experiencing pain. The Board finds that the limitations associated with his disabilities would pose significant barriers to ability to achieve and sustain gainful employment. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (holding that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran's ability to perform the physical and mental acts necessary for such an occupation). Though the Board acknowledges that the 2017 VA examiner found that the Veteran would be able to work in a sedentary work environment, described as a computer/clerical environment, the Board has not only considered the symptoms addressed above, but has also considered the Veteran's educational and occupational history. The Veteran had experience working in the U.S. Postal Office as a mechanic and recently held warehouse positions. However, as stated by the vocational consultant, he has a high school eduction but no other training, aside from graphic design more than 40 years ago, that would allow him to do sedentary work. The vocational consultant found that the symptomatology associated with his service-connected disabilities, including impaired concentration and pain, would not allow the Veteran to engage in substantially gainful employment, including those positions which would allow for more sitting. Resolving reasonable doubt in the Veteran's favor, TDIU is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Concerning the arguments made as to the assignment of an effective date for the award of TDIU beginning in August 2011 as opposed to October 13, 2012, the day following the Veteran's most recent employment, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.