Citation Nr: 21040277 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-10 420A DATE: July 3, 2021 ORDER Entitlement to an effective date of March 30, 2010, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT For the appeal period from March 30, 2010 to November 21, 2011, the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to an effective date of March 30, 2010, but no earlier, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1980 to April 1982 and from January 1985 to July 1986. This case was previously before the Board in December 2018, at which time the Board remanded the matters to associate with the claims file certain outstanding VA treatment records and from the Social Security Administration (SSA), and to request that the Veteran provide information regarding any outstanding, pertinent treatment records, including from private medical providers. There was substantial compliance with the December 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In its May 2020 decision, the Board denied: (1) entitlement to an effective date earlier than November 21, 2011, for the assignment of a 40 percent rating for service-connected degenerative disc disease (DDD) of the lumbar spine; (2) entitlement to an effective date earlier than November 21, 2011, for the award of a TDIU; and (3) entitlement to an effective date earlier than November 21, 2011, for the establishment of basic eligibility for Dependents' Educational Assistance (DEA) benefits. Subsequently, the Veteran appealed the part of the May 2020 Board decision that denied entitlement to an effective date earlier than November 21, 2011, for the award of a TDIU. In March 2021, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the portion of the May 2020 Board decision that denied an effective date earlier than November 21, 2011, for the award of a TDIU. Entitlement to an effective date of March 30, 2010, but no earlier, for the award of a TDIU. The Veteran is seeking an effective date earlier than November 21, 2011, for the award of a TDIU. The Board finds that an earlier effective date of March 30, 2010 (date of claim for a TDIU) for the grant of a TDIU is warranted. The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, 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). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), "Marginal employment shall not be considered substantially gainful employment." Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a fact-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities, or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In May 2019, the United States Court of Appeals for Veterans Claims (Court) held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran's history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue; and 3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). In Ray v. Wilkie, the Court explained that substantially gainful employment contains economic and noneconomic components. 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. For the appeal period from March 30, 2010 to November 21, 2011, the Veteran's service-connected disabilities included: (1) degenerative disc disease (DDD) of the lumbar spine rated at 20 percent from March 30, 2010 to November 11, 2011; (2) left femur fracture open with loss of quadriceps strength and mild genu valgum deformity of left lower extremity rated at 10 percent; (3) degenerative joint disease of left wrist, status post traumatic distal radius of ulna (dominant) rated at 10 percent; (4) fracture of the left fibular with residual left ankle degenerative joint disease rated at 10 percent from March 30, 2010; (5) fracture of the left pelvic ramus rated at 10 percent from March 30, 2010; (6) and right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine rated at 10 percent from March 30, 2010. Although the combined disability rating was 60 percent during this time period, all of these service-connected disabilities resulted from the same common etiology or single accident, i.e., an in-service motor vehicle accident. 38 C.F.R. § 4.16(a)(3). Thus, for the period prior to November 21, 2011, the threshold requirements for a TDIU rating on a schedular basis are met, and the only question to be answered is whether the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to this date. 38 C.F.R. § 4.16(a). In March 2010, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (application for a TDIU). The Veteran contended that his left hand, wrist, and back pain prevented him from following or securing gainful employment. He stated that these disabilities affected his full-time employment since November 1, 2009. He noted that he was self-employed from August 2003 to November 2009 working with computers. He stated that he earned $2,600.00 per month during this time period and that he lost 1040 hours of work time due to illness between 2003 and 2009. He also noted that his income was $16,000.00 in the previous year. He indicated that he applied for three jobs in March 2010 in management and sales. He stated that he was a computer programmer in 2003 when he earned $38,000.00. The Veteran had completed two years of college. In an April 2010 statement, the Veteran complained of severe pain, cramps, and numbness in both hands. He noted that he had to use daily pain medication to treat his symptoms. He also stated that he could not sit or use a computer any more due to pain in his leg and lower back. The June 2010 VA examiner noted the veteran's service-connected conditions caused him to avoid walking more than 50 feet, avoid standing more than 1 to 2 minutes, avoid lifting over 10 pounds, and avoid bending, stairs, and squatting. In a January 2011 statement, the Veteran asserted that he was no longer employed as a computer programmer because he could not type or use the computer mouse with his left hand. The Board notes that the record shows that the Veteran is lefthanded. He stated that he could not sit at a desk for any period of time as it was extremely painful. He contended that he could not concentrate due to pain and medication he used to treat his pain. He asserted that he could barely get in and out of a vehicle to get to a job much less be able to drive with the pain medication onboard. He noted that he took Naproxen three times per day and that he took Tramadol three to five times per day. A July 2011 VA neurology note showed that he complained of pain in his wrist and left leg. The medical professional noted that the pain did not have an impact on his activities of daily living, but the Veteran reported that the impact of the pain on his work was that he was unable to type continuously, and he was unable to find a comfortable sitting position. A July 2011 VA functional capacity evaluation report showed that the Veteran was able to work at a light physical demand level for an eight-hour day according to the standards set by the United States Department of Labor. During a thorough evaluation of his functional abilities, the Veteran reported bilateral hand problems, which manifested as numbness and severe pain after five-to-seven minutes. He asserted that he had problems bathing and dressing, which required that his wife help him with bathing. The Veteran further noted functional limitation related to his lumbar spine and left leg and wrist symptoms. The Board notes that the evaluator noted that the Veteran exhibited symptom/disability exaggeration behavior and that he scored a 60 percent on the Waddell's protocol, which indicated the presence of a non-organic component to his pain, medical impairment, and disability. The evaluator also noted that the Veteran scored a 15 out of a possible 25 (or 60 percent) validity criteria during the functional capacity evaluation, which suggested a poor effort and borderline invalid results. In the November 2011 private physical medicine and rehabilitation medical evaluation, the Veteran reported that he worked at Disney World for two years after service discharge in 1986. He received an Associate Degree in Applied Science with a concentration in Computers in 1990. He told the evaluator that from 1990 to 2009, he worked for Safety Info, and that his duties consisted of maintaining systems. He reported that he left this position because he was no longer able to sit and type for prolonged periods of time. He also stated that he volunteered at a Christian school from 2009 to 2011, where he provided computer literacy instruction to faculty and students on a part-time basis. The evaluator determined that the Veteran was unable to perform gainful employment as a result of his service-connected left upper extremity and lumbar injuries. The evaluator noted that the Veteran sat approximately ten hours per day and walked and stood one hour per day; however, the evaluator noted that sitting at a sofa or a recliner and changing positions as needed is not the same as sitting at a desk for eight hours. The evaluator opined that based on his clinical experience, review of the Veteran's medical records and claims file, and the in-person physical evaluation, the Veteran was not able to work at a sedentary work level due to his lumbar spine pain and muscle spasms. The evaluator also determined that the Veteran was unable to use his left hand to perform repetitive fine motor activities. In a September 2012 decision, SSA determined that the Veteran was disabled since October 20, 2009. The Board notes that this fully favorable decision considered the impact of service-connected disabilities, as well as nonservice-connected disabilities, in determining that the Veteran was disabled for SSA purposes. Specifically, the September 2012 decision noted that osteoarthritis, bilateral carpal tunnel syndrome, right hip and thigh injury, DDD of the lumbar spine, left ankle DJD, and hypertension caused the Veteran to be disabled. As noted above, only the Veteran's lumbar spine, left femur and left fibula, left pelvic ramus, left wrist, and right lower extremity radiculopathy disabilities are service-connected. The Board finds that the medical and lay evidence of record is at least in relative equipoise as to whether the Veteran's service-connected disabilities prevented him from securing substantially gainful employment. The Veteran's service-connected disabilities, to include his back, left femur, left wrist, left fibula, left pelvic fracture, and right lower extremity radiculopathy, limited his ability to function in a work environment consistent with his work history and education. The Veteran complained of severe pain, cramps, and numbness in both hands. He noted that he had to use daily pain medication to treat his symptoms. He also stated that he could not sit or use a computer any more due to pain in his leg and lower back. Veteran's service-connected conditions caused him to avoid walking more than 50 feet, avoid standing more than 1 to 2 minutes, avoid lifting over 10 pounds, and avoid bending, stairs, and squatting. The Board notes that the SSA determined that the Veteran was disabled since October 20, 2009; however, this determination considered both the Veteran's service-connected and non-service-connected disabilities. Although a July 2011 VA functional capacity evaluation report showed that the Veteran was able to work at a light physical demand level for an eight-hour day according to the standards set by the United States Department of Labor, a November 2011 private physical medicine and rehabilitation medical evaluation concluded that the Veteran was not able to work at a sedentary work level due to his lumbar spine pain and muscle spasms. The evaluator also determined that the Veteran was unable to use his left hand to perform repetitive fine motor activities. Also, the Board notes that the Veteran volunteered part-time volunteered at a Christian school from 2009 to 2011, where he provided computer literacy instruction to faculty and students. The Board finds this volunteer work to be marginal employment because the Veteran did not work a full 8 hour schedule and only worked part-time on a voluntary basis. Thus, the Veteran's service-connected disabilities prevented him from adequately functioning in a work environment in his fields of education and training. Although his mental ability does not limit his ability to work, his physical ability limits his ability to work. The VA has the ultimate decision on entitlement to a TDIU and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). The Board has considered the Veteran's lay statements and all medical evidence of record and finds that the evidence is at least in relative equipoise as to whether his service-connected disabilities prevented him from following substantially gainful employment. The reasonable doubt rule must be applied to the claim, and thus, the claim must be resolved in favor of the claimant. (Continued on next page) Thus, entitlement to a TDIU for the appeal period from March 30, 2010 to November 21, 2011, is granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.