Citation Nr: 21032184 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-24 759 DATE: May 26, 2021 ORDER As of January 17, 2020, but no earlier, a total disability based on individual unemployability due to service-connected disabilities (TDIU) on an extra-schedular basis is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT As of January 17, 2020, but no earlier, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW As of January 17, 2020, but no earlier, the criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to October 1978 and from October 1992 to April 1993, with additional inactive duty service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office. In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. In July 2020, the Board remanded the issue on appeal for additional development and the case now returns for further appellate review. Entitlement to a TDIU on an extra-schedular basis. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service (Director) 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 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). 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, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). 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. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. While the Veteran only claims entitlement to a TDIU as of 2007, the year he last worked in a full-time capacity, the Board notes that the appeal period stems from February 26, 1982, the date service connection for bilateral pes planus pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, as of such date, service connection was in effect for such disability, evaluated as 10 percent disabling prior to April 26, 2012 (exclusive of the time period where the Veteran returned to active duty), 20 percent disabling from April 26, 2012, to April 11, 2019, and 30 percent disabling thereafter; acne vulgaris and pseudofolliculitis barbae (PFB), evaluated as 10 percent disabling as of August 19, 1988, to May 21, 1993 (exclusive of the time period where the Veteran returned to active duty), and 30 percent disabling thereafter; bilateral corneal infiltrates, evaluated as 10 percent disabling as of April 9, 1993; tinnitus, evaluated as 10 percent disabling as of February 22, 2007; and bilateral dry eye syndrome, evaluated as 20 percent disabling as of January 17, 2020. Thus, exclusive of the time periods where the Veteran returned to active duty, he had a combined disability rating of 10 percent as of February 26, 1982; 20 percent disabling as of August 19, 1988; 30 percent disabling as of April 17, 1993; 40 percent disabling as of May 21, 1993; 50 percent disabling as of February 22, 2007; 60 percent disabling as of April 26, 2012; and 70 percent disabling as of January 17, 2020 (but without a single disability rated as 40 percent disabling). Therefore, at no point during the pendency of the appeal did the Veteran meet the schedular threshold for consideration of a TDIU. Nonetheless, as previously noted, rating boards will submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). In this regard, the Director provided an advisory opinion unfavorable to the Veteran's claim in December 2020. Therein, she, in pertinent part, found the evidence establishes that jobs performed outdoors and require prolonged standing would not be an ideal fit for the Veteran due to his dry eye syndrome and pes planus. However, the Director also noted that the evidence of record shows the Veteran had a mixed-employment history of some labor intensive jobs and some more sedentary jobs, with one year of college education. Thus, she found that such demonstrated an aptitude to be able to learn new skills. Additionally, the Director noted there are many jobs in the workplace that require only light activity and which a person with a high school education would be capable of performing. After giving consideration to all evidence, including, but not limited to the Veteran's education, training, and work history, the Director determined such failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities represent an exceptional situation that prevents gainful employment. Conversely, a Rehabilitation Counselor, F.F., opined in a January 2020 TDIU Vocational Assessment Report that it is at least as likely as not that the Veteran had been unable to secure and follow substantially gainful employment, to include sedentary employment, since at least 2007 to the present as a result of his service-connected bilateral pes planus, skin disability, bilateral corneal infiltrates, and tinnitus. Specifically, the Veteran was unable to meet the physical requirements of even sedentary work due to his service-connected bilateral foot condition, and unable to maintain the non-exertional requirements of pace and productivity as a result of his distracting physical bilateral foot pain, eye condition, skin disability, and tinnitus. Further, the combination of his service-connected conditions and subsequent limitations in concentration would complete erode any transferable skills he acquired throughout his vocational history. In addition, F.F. found the Veteran's service-connected conditions negatively impacted his ability to learn new skills due to impairments in concentration. As noted above, the record shows the Veteran acquired one year of college as his highest level of education. According to his VA Form 21-8940, he last worked full-time in 2008, but continued to work part-time until 2010. In this respect, the poverty thresholds for a single-person household under 65 years of age were $10,787, $11,201, 11,161, and $11,344, in 2007, 2008, 2009, and 2010, respectively. According to Social Security Administration (SSA) records, the Veteran earned $14,437.06 in 2007, $7,550.27 in 2008, $6,706.12 in 2009, and $337.38 in 2010. Thus, although the Veteran's earned income exceeded the poverty threshold in 2007, his work in 2008, 2009, and 2010 is deemed to be only marginal employment. Further, such shows that he held positions as an employment specialist, in manufacturing, job coach, call center representative, and package scanner between 2005 and 2010. However, upon review the Board finds the evidence does not show the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to January 17, 2020. Although the record shows SSA deemed the Veteran disabled as of September 17, 2009, such was based on a primary diagnosis of osteoarthrosis and allied disorders (an elbow disability) and a secondary diagnosis of disorders of the back. In this regard, on VA examination in April 2012, the Veteran himself reported that he was on medical leave from his job with UPS and had not been working for two years due to work-related injuries to his right knee and left elbow, which are nonservice-connected disabilities. Following physical examination, the VA examiner characterized the Veteran's bilateral pes planus as only mild to moderate in severity. It was noted that the Veteran did not use any ambulatory devices, and the VA examiner reported that such disability did not impact his ability to work. Subsequent VA treatment records, to include those dated in August 2014, indicate the Veteran experienced bilateral foot pain described as constant aching. Prior to February 2020, the Veteran last underwent VA examination to discern the nature and severity of his eye disorders in January 2005. Therein, the Veteran reported moderate light sensitivity, sharp pain, sensitivity to air, and mild redness; however, his visual acuity and visual fields were normal. The examiner's impression, in pertinent part, was corneal infiltrates in the right eye, as no infiltrates were noted in the left eye. Prior to February 2020, the Veteran last underwent VA examination to discern the nature and severity of his tinnitus in August 2007. The associated report indicates the Veteran experienced constant high-pitched ringing in the ears, especially in quiet situations. Prior to March 2020, the last examination addressing the nature and severity of the Veteran's acne vulgaris and PFB is dated in December 1993, at which time he had "many round lesions approximately two to three cm. in diameter over both arms, chest, and back," which he reported worsened during the summer and itched. Notably, the Veteran did not file a formal or informal claim requesting an increase in the ratings assigned for such disabilities during the pertinent period, which would indicate a worsening in the severity of such disabilities during such time. Additionally, the lack of such claims has resulted in a scant amount of medical evidence regarding the severity of such disabilities prior to January 2020. Notably, the question of employability is ultimately a legal one, not a medical one. Upon review, the Board finds the preponderance of the evidence, described above, does not show the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to January 17, 2020. Here, the Board finds the record does not show the Veteran's service-connected disabilities were of such severity so as to render him incapable of performing the physical and mental acts required by employment in a position requiring only light physical activity in an indoor setting, such as his previous positions as an employment specialist, job coach, and call center representative. Moreover, the evidence cited above shows the Veteran initially went on medical leave from his job due to nonservice-connected disabilities, which also served as the basis for his SSA disability benefits award. However, based on the medical evidence dated on and after January 17, 2020, the Board finds the Veteran's service-connected disabilities alone produced unemployability. Initially, as cited by the Director, the Board notes "a high rating in itself recognizes that the impairment makes it difficult to obtain and keep employment", and in this respect, the Veteran is in receipt of a 70 percent rating as of January 17, 2020. Additionally, the Board affords the January 2020 TDIU Vocational Assessment Report probative value with respect to the severity of the Veteran's disabilities at that time. In this regard, the Board notes F.F. opined entitlement to a TDIU was warranted dating back to 2007. However, the Board affords greater probative value to the contemporaneous evidence dated during the appeal period. Accordingly, the Board notes F.F.'s opinion appears consistent with the medical evidence dated as of January 17, 2020. First, the February 2020 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) indicates that, although the Veteran's tinnitus would not impact ordinary conditions of daily life, including his ability to work, the Veteran reported that his tinnitus made sleeping and concentration difficult, and he experienced difficulty understanding speech during periods of loud bouts of ringing in both ears. Second, according to a February 2020 Eye Conditions DBQ, although the scars from the Veteran's bilateral corneal infiltrates had resolved, he now suffered from dry eye, which caused fluctuations in his vision and discomfort. In this respect, the VA examiner noted the Veteran had trouble in outdoor environments, which contributed to his discomfort and dry eye problems. Moreover, the VA examiner found the fluctuations in visual acuity would make it "very difficult for the patient to have reliable and clear vision as would be needed for in an occupational environment". Consequently, the Board finds the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his level of education (one year of college) and history of both manual and non-manual work as of January 17, 2020. In reaching such determination, the Board has resolved all doubt in favor of the Veteran, which has resulted in the partial award of the benefit sought herein. Therefore, a TDIU on an extra-schedular basis is warranted as of January 17, 2020. However, as the preponderance of the evidence is against the Veteran's claim for a TDIU prior to such date, the benefit of the doubt doctrine is not applicable and such must be denied. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.