Citation Nr: 21030656 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-00 437A DATE: May 19, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from November 1, 2008 to April 3, 2009 is granted. A TDIU from April 3, 2009 to July 31, 2012 is granted. Special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. The Veteran had two years of college education, has past relevant work experience as an aviation boatswain's mate, and has not worked full time since service separation (i.e., October 2018). 2. From November 1, 2008 to July 31, 2012, the service-connected lumbar and cervical spine disabilities and service-connected psychiatric disability alone were of sufficient severity to preclude substantially gainful employment. 3. From November 1, 2008, there is no single service-connected disability rated at 100 percent with additional separate and distinct service-connected disabilities independently rated at 60 percent or greater. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU are met from November 1, 2008 to April 3, 2009. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU are met from April 3, 2009 to July 31, 2012. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. 3. The criteria for SMC at the housebound rate are not met for any period. 38 U.S.C. §§ 1114, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from December 2004 to October 2008. This matter is on appeal from a July 2010 rating decision. In September 2016, the Veteran testified at a videoconference Board hearing before a Veterans Law Judge who has since retired. The Veteran has waived the right to another Board hearing. In the February 2019 decision, the Board denied referral of a TDIU under 38 C.F.R. § 4.16(b) prior to April 3, 2009, denied a TDIU under 38 C.F.R. § 4.16(a) from April 3, 2009, and denied SMC at the housebound rate. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). The Board's decision was vacated pursuant to a December 2019 Joint Motion for Remand (Joint Motion or JMR) on the bases that the Board provided inadequate statements of reasons or bases to support the decision by failing to discuss the Veteran's physical and mental limitations when determining whether the Veteran could secure or follow substantially gainful employment. The issue of SMC at the housebound rate was vacated as an inextricably intertwined issue. The case now returns to the Board. TDIU Legal Criteria 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 rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a 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). For the purpose 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, or of 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. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 1. A TDIU from November 1, 2008 to April 3, 2009 is granted. 2. A TDIU from April 3, 2009 to July 31, 2012 is granted. The Veteran seeks a TDIU from November 1, 2008 to July 31, 2012. Because a combined 100 percent schedular disability rating is in effect from July 31, 2012, forward, and neither the Veteran nor the evidence has raised the issue of TDIU based on only one service-connected disability to raise the potential for SMC, a TDIU is not for consideration from July 31, 2012, forward. From November 1, 2008 to July 31, 2012, the service-connected disabilities are the lumbar spine disability, rated at 10 percent from November 1, 2008 to April 3, 2009, and at 40 percent thereafter; right upper extremity radiculopathy, rated at 0 percent from April 3, 2009 to June 18, 2009, and at 10 percent from June 18, 2009 to July 31, 2012; major depression, rated at 30 percent from November 1, 2008; the cervical spine disability, rated at 10 percent from November 1, 2008 to April 3, 2009, 20 percent from April 3, 2009 to June 18, 2009, and 30 percent thereafter; left upper extremity radiculopathy, rated at 0 percent from April 3, 2009 to June 18, 2009, 10 percent from June 18, 2009 to July 31, 2012, and 30 percent thereafter; a left shoulder disability, rated at 10 percent from November 1, 2008 to June 18, 2009, and 20 percent thereafter; lower thoracic spine and right sacral area surgical scars, rated at 10 percent from November 1, 2008; soft tissue swelling of the left great toe metatarsophalangeal joint, rated at 0 percent from November 1, 2008 to May 18, 2009, and 10 percent thereafter; gastroesophageal reflux disease with hiatal hernia (GERD), rated at 0 percent at November 1, 2008 to June 18, 2009, and at 10 percent thereafter; right and left lower extremity radiculopathies, each rated at 0 percent from April 3, 2009 to June 19, 2009, and 10 percent thereafter; and burn scars on the right and left forearm, each rated at 0 percent from November 1, 2008. The combined disability rating is 50 percent from November 1, 2004 to April 3, 2009, 70 percent from April 3, 2009 to June 18, 2009, 90 percent from June 18, 2009 to July 31, 2012, and 100 percent thereafter. From November 1, 2008 to April 3, 2009, there is no service-connected disability rated at 40 percent or higher and the combined rating is less than 70 percent, so the percentage threshold requirements for TDIU eligibility under the provisions of 38 C.F.R. § 4.16(a) are not met for this portion of the TDIU rating period. From April 3, 2009 to July 31, 2012, one service-connected disability is rated at 40 percent or higher (i.e., the lumbar spine disability at 40 percent) and the combined rating is 70 percent or higher (i.e., 70 percent), the combined rating percentage threshold requirements for TDIU eligibility under the provisions of 38 C.F.R. § 4.16(a) are met for this portion of the TDIU rating period. This case was previously referred to the Director of the Compensation Service for consideration of whether an award of a TDIU from November 1, 2008 to April 3, 2009 was warranted under 38 C.F.R. § 4.16(b). In August 2017, the Director of Compensation Service effectively reviewed TDIU eligibility under 38 C.F.R. § 4.16(b) for the period and determined that the Veteran was not unable to secure and follow any gainful occupation due to service-connected disabilities on the basis that the back and neck disabilities made physical occupational activity difficulty but not impossible and sedentary work was not shown to be precluded. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran was unable to maintain substantially gainful employment due to the service-connected disabilities from November 1, 2008 to July 31, 2012. The Veteran contends that the service-connected lumbar and cervical spine disabilities together with the service-connected psychiatric disability have rendered him unemployable. He has reported two years of college education, has past relevant work experience as a Navy aviation boatswain's mate, and has not worked full time since service separation in October 2008 when he was medically discharged and placed on the temporary disability retired list. During the TDIU rating period from November 1, 2008 to April 3, 2009, the lumbar spine disability was manifested by a history of two back surgeries with residual painful, limited lumbar spine motion with forward flexion limited to 63 degrees due to pain, and the September 2008 VA examiner specifically wrote that the Veteran's work had been limited by the lumbar spine post-operative condition. The cervical spine disability was manifested by painful cervical spine motion with right rotation limited to 67 degrees, left rotation limited to 77 degrees with no repetitive motion permitted during the September 2008 VA examination due to pain. The psychiatric disability was manifested by decreased work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of moderate anxiety and depression, limited social life but with some friends, sleep impairment, and irritability. During the TDIU rating period from April 3, 2009 to July 31, 2012, the lumbar spine disability was manifested by a history of three back surgeries with residual stiffness, weakness, and painful lumbar spine motion with reduced range of motion in all directions with forward flexion limited to 35 degrees and caused moderately severe functional impairment, marked limitation of the ability to perform activities of daily living, and marked limitation of the ability to obtain or retain employment. The cervical spine disability was manifested by painful cervical spine motion with flexion limited to 15 degrees and caused a moderate degree of functional impairment and limitation of the ability to obtain or retain employment and perform activities of normal daily living. The psychiatric disability was manifested by decreased work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of decreased motivation and concentration, depression, sleep impairment, and dysphoric mood. The Veteran has limited education and his past work experience as a boatswain's mate likely required concentration and motivation and the ability to perform heavy lifting and other physical labor. Because of the service-connected lumbar and cervical spine symptoms of painful motion with limited range of motion and psychiatric symptoms of decreased concentration and motivation, the Board finds that the Veteran would have significant difficulty currently performing these work duties. Also, during the pendency of the appeal, the Veteran applied for vocational rehabilitation and employment services through VA, and the vocational rehabilitation plan was placed in interrupted status in February 2020 because he had not been actively pursuing the plan due to taking care of medical concerns. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected lumbar spine, cervical spine, and psychiatric disabilities alone are of sufficient severity so as to preclude substantially gainful employment for the TDIU rating period effective from November 1, 2008 to July 31, 2012; therefore, a TDIU is warranted for the period. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. SMC at the housebound rate under 38 U.S.C. § 1114(s) is denied. The Veteran seeks SMC at the housebound rate under 38 U.S.C. § 1114(s). He does not contend, and the evidence does not otherwise show, that he was permanently housebound due to service-connected disabilities for any period. The regulatory criteria provide that additional compensation on the basis of being housebound is warranted where a veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. The criteria for SMC based on housebound status have not been met. The Veteran will be in receipt of a TDIU from November 1, 2008 to July 31, 2012 based on the service-connected lumbar and cervical spine disabilities and service-connected psychiatric disability for reasons explained above. See Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010) (recognizing that a TDIU rating that is based on a single service-connected disability could satisfy the section 1114(s) requirements). The Veteran is in receipt of a combined 100 percent rating from July 31, 2012, forward. He is not shown to have a single service-connected disability rated at 100 percent and has not been shown to have been rendered unemployable due to one disability with additional "separate and distinct" disabilities independently rated at 60 percent or more for any period. For these reasons, the Board finds that the total (100 percent) rating plus separate combined 60 percent criteria (or higher) under 38 U.S.C. § 3.350 (i)(1) have not been met, and SMC at the housebound rate is not warranted. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.