Citation Nr: 21031506 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-12 175 DATE: May 24, 2021 ORDER From August 22, 2015, entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefit. REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right shoulder is remanded. FINDING OF FACT From August 22, 2015, the Veteran's service-connected disabilities combine to preclude substantially gainful employment. CONCLUSION OF LAW From August 22, 2015, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1996. 1. Entitlement to a TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). VA regulations provide that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's current service-connected disabilities are degenerative disc disease of the lumbosacral spine, 60 percent disabling from February 16, 2001 and 40 percent disabling from August 1, 2017; degenerative joint disease of the right shoulder, 10 percent disabling from September 1, 1996 and 20 percent disabling from October 23, 2003; hypertension as 10 percent disabling from September 1, 1996; residuals of carpal tunnel syndrome, right wrist as 10 percent disabling from September 1, 1996; left lower extremity sciatic radiculopathy as 10 percent disabling from September 1, 1996; right lower extremity sciatic radiculopathy as 10 percent disabling from September 1, 1996; and noncompensable (0 percent) disability ratings for left ankle tarsal bursitis/tendonitis, tinnitus, residuals of left inguinal hernia repair, residuals of left hand injury, and residuals of CTS, left wrist from September 1, 1996. Thus, the Veteran's combined disability rating meets the threshold schedular criteria for eligibility for a TDIU from February 16, 2001. 38 C.F.R. § 4.16 (a). On his March 2, 2015 application for increased compensation based on unemployability, the Veteran reported that he finished high school and did not attend college. The Veteran noted that he had supervisor and manager trainings from April 2002 to July 2013. The Veteran noted that he worked full-time from February 2009 to the present as a quality manager and that he was working on a short-term special project that would be ending soon. He stated that he would not be able to perform his work duties after the project due to his service-connected disabilities. Specifically, his service-connected back disability prevented him from walking or sitting for prolonged periods of time which was required for his position. In an August 2015 decision, the United States Office of Personnel Management (OPM), the Veteran's previous employer, granted a disability retirement effective in February 2015. During his March 2021 Board hearing, the Veteran testified that received a disability retirement from OPM. He stated that his last day of full-time employment was August 22, 2015. He also reported receiving Social Security Administration (SSA) benefits. The Veteran had not sought work after his medical retirement. He believed his service-connected back disability prevented him from maintaining substantially gainful employment. He worked his entire adult life as a marine mechanic and gas turbine technician. He was a certified marine mechanic and had certificates from management schools. His work required him to be at a desk half of the time and in the field the other half. Back pain and radicular pain prevented the Veteran from walking or sitting for prolonged periods of time. Also, the Veteran reported that he could manage his finances and activities of daily living. The Board notes that while SSA determinations are not binding on the Board, they are, however, relevant and are probative evidence specifically in consideration of the Veteran's claim for a TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). A December 2014 private treatment note indicates that the Veteran had reached a point where he no longer was able to be employed as a ship worker, the only work he knew how to do. The Veteran's reported subjective complaints were increasing pain in his back and down his legs causing weakness, inability to stand more than 30 minutes and a lot of pain with any type of bending or lifting. The examiner noted that the Veteran had a lot of legitimate problems. A September 2016 VA treatment note indicated that the Veteran was severely limited due to intense (10/10) intermittent low back pain. He walked with a cane. His balance and gait were unsteady. His back was spastic; therefore, limiting his ability to bend or flex. Pain was exacerbated by walking, sitting, or bending. In February 2017, the Veteran underwent a private examination. He reported last being employed in August 2015. He worked as a quality manager. The examiner diagnosed the Veteran with severe degenerative disc disease of the lumbar spine. The Veteran reported sharp, achy lumbar spine pain. Lumbar spine pain increased with prolonged sitting, standing, and walking. A September 2017 VA examiner noted that the Veteran's back disability caused difficulty with walking, standing, or sitting for prolonged periods of time. Based on the above, considering his educational and occupational background with his service-connected degenerative disc disease of the lumbosacral spine and related service-connected disorders including lower extremity radiculopathy, the Board finds credible the Veteran's testimony that his service-connected degenerative disc disease of the lumbosacral spine has precluded employment from August 22, 2015, the date the Veteran was last employed full-time. In viewing the medical evidence of record, as well as the statements by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran's degenerative disc disease of the lumbosacral spine. The evidence reflects that the Veteran's symptoms included difficulty with walking, standing, or sitting for prolonged periods of time. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. Based on the foregoing, the Board finds that a TDIU is warranted from August 22, 2015. REASONS FOR REMAND 2. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right shoulder is remanded. During his March 2021 Board hearing, the Veteran asserted that his right shoulder disability increased in severity since the Veteran was last examined by VA in June 2015. He specifically asserted that his right shoulder disability was manifested by shooting pain, loss of grip strength, and that it caused decreased range of motion. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.