Citation Nr: 21041704 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-31 045 DATE: July 9, 2021 ORDER The March 8, 2021 Board decision that dismissed entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU), for the appeal period from January 28, 2014 to June 6, 2016 only, is vacated. Entitlement to a TDIU from January 28, 2014 to June 6, 2016 is granted. FINDINGS OF FACT 1. For the appeal period from January 28, 2014 to June 6, 2016, the Veteran's combined disability rating was 90 percent. 2. In the March 8, 2021 Board decision, the Board dismissed as moot the Veteran's claim for entitlement to a TDIU based on an erroneous mathematical calculation that the Veteran had a combined schedular 100 percent rating for the entire period on appeal to include the period from January 28, 2014 to June 6, 2016. 3. For the appeal period from January 28, 2014 to June 6, 2016, the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for vacating the Board decision issued in March 8, 2021 that dismissed entitlement to a TDIU, for the appeal period from January 28, 2014 to June 6, 2016 only, have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The criteria for a TDIU have been met for the appeal period from January 28, 2014 to June 6, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 2000 to September 2004, and in the United States Navy from May 2008 to January 2014, to include service in Southwest Asia. The Veteran's awards and decorations for his service include a Combat Action Badge, among others. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction of this appeal is currently with the RO in San Diego, California. This case was most recently before the Board in March 2021, at which time the Board adjudicated the issue of entitlement to a TDIU, and dismissed the issue as moot based on a finding that the Veteran's total combined rating was 100 percent for the entire period on appeal. Unfortunately, in the March 2021 decision, the Board erroneously calculated the Veteran's combined rating for the appeal. VACATUR The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. The Board is vacating its March 8, 2021 decision as to the issue of entitlement to a TDIU for the appeal period from January 28, 2014 to June 6, 2016 only. The March 8, 2021 Board decision dismissed the Veteran's claim based on an erroneous calculation that the Veteran had a combined schedular 100 percent rating for the entire period on appeal; however, his combined rating was 90 percent from January 28, 2014 to June 6, 2016 when the Board's decision was implemented by the RO. The Board finds that the Veteran was not afforded full due process rights as provided by the applicable regulations. See 38 C.F.R. §§ 3.103, 20.1304(a); Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009) (due process protections apply to disability compensation proceedings before VA). Accordingly, the Board finds that the March 8, 2021 decision addressing the issue of entitlement to a TDIU for the appeal period from January 28, 2014 to June 6, 2016 only is vacated. The claim will then be considered de novo. Entitlement to a TDIU from January 28, 2014 to June 6, 2016 The Veteran contends that his psychiatric symptoms, in combination with his physical disabilities, prevent him from obtaining and maintaining substantially gainful employment. In this regard, the Board notes that the Veteran contends that all of his service-connected disabilities have prevented him from securing or following a substantially gainful occupation from January 2014 to the present. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, December 21, 2020; see also Third Party Correspondence, December 18, 2020. 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 for extraschedular 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). See 38 C.F.R. § 4.16(b). 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); see 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). An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities. Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment. Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013). In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The Veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the appeal period from January 28, 2014 to June 6, 2016, service connection was in effect for an adjustment disorder, at 70 percent disabling; obstructive sleep apnea, at 50 percent disabling; headache syndrome, as noncompensable (zero percent disabling); right elbow lateral and medial epicondylitis with limitation of flexion, at 10 percent disabling; right hip trochanteric bursitis with limitation of flexion, as noncompensable; left hip trochanteric bursitis with limitation of flexion, as noncompensable; lumbar strain with intervertebral disc syndrome (IVDS), at 10 percent disabling; right upper extremity peripheral neuropathy, as noncompensable; left knee meniscal tear with strain and osteoarthritis, at 10 percent disabling; right knee meniscal tear with strain and osteoarthritis, at 10 percent disabling; right ankle collateral sprain with tendonitis, as noncompensable; left ankle collateral sprain with tendonitis, as noncompensable; left hip trochanteric bursitis with impairment of the thigh, as noncompensable; left ulnar neuropathy, at 10 percent disabling; tinnitus, at 10 percent disabling; right wrist sprain, as noncompensable; and all linear scars head to toe, as noncompensable. The combined rating was 90 percent from January 28, 2014 to June 6, 2016. The criteria for consideration of TDIU pursuant to 38 C.F.R. § 4.16(a) have therefore been met. Consequently, the remaining inquiry is whether such service-connected disabilities render him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background for this appeal period. Initially, as explained above, the instant claim was previously dismissed as moot in a March 2021 Board decision. Throughout the period on appeal, the occupational and social impairment of the Veteran's adjustment disorder has been described in sufficient detail in prior Board decision. See Board decision, March 8, 2021. Additionally, the March 2021 Board decision described in sufficient detail the functional impact and/or functional loss of his service connected headache syndrome, left hip, right hip, left ankle, right ankle, left ulnar neuropathy, right wrist, and linear scars. The March 2021 Board decision described and discussed the pertinent medical evidence associated with the claims file as of the date of that decision, to include VA examination reports, post-service treatment records, private evaluation reports, and lay statements provided by the Veteran. The occupational and social impairment of his adjustment disorder as discussed in the March 2021 Board decision, the functional impact and/or functional loss of his service-connected headache syndrome, left hip, right hip, left ankle, right ankle, left ulnar neuropathy, right wrist, and linear scars, and the relevant evidence described is incorporated herein. Turning to the evidence, of record is an April 2014 VA treatment record that indicates the Veteran had bilateral knee pain. The VA treatment provider noted that the Veteran was unable to work any job and was also unable to attend school regularly due to the severity of his bilateral knee pain. At this time, the Veteran was unemployed since his separation from active service, and was taking college course. Of record is a June 2017 VA memorandum regarding the Veteran's VA education benefits. In this regard, the Vocational Rehabilitation and Education (VR&E) officer found the Veteran had a serious employment handicap and required additional time to complete a training program. The VR&E officer noted the Veteran needed additional time to finish his bachelor's degree, and would graduate by the Fall of 2018. In a November 2020 statement, the Veteran reported that he had difficulty finding gainful employment beginning in 2014 because of his mental health, sleep disorder, headaches, and right elbow, right wrist, bilateral hips, and back pain. He reported he was unable to find employment until very recently, in March 2020, and when he worked part-time caring for dogs. However, he stated he had to stop working due to his pain. The Veteran reported significant psychiatric symptoms, to include difficulty sleeping, racing thoughts, paranoia, anxiety, nightmares, suicidal ideation, forgetfulness, losing focus, being easily distracted, difficulty with communication and interpersonal interactions, mood swings, feeling overwhelmed, and difficulty maintaining hygiene. The Veteran also reported headaches occurring a few times a week, that required him to lie down in total darkness and that his headaches also resulted in dizziness, blurred vision, light-headedness, pins and needles feelings in his extremities, being fatigued the following day, and difficulty concentrating with headache pain. The Veteran stated he had difficulty with gripping and lifting due to joint pain and that such pain interfered with household chores. His back pain resulted in limited sitting and standing, twisting and bending difficulty, and limited walking. In connection with his claim, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in December 2020. In such application, he indicated that all of his service-connected disabilities prevented him from securing or following any substantially gainful occupation. He reported that he last worked full-time as an accounting specialist for a construction firm in May 2019. He last worked part-time in March 2020. He also reported working part-time in accounts payable from June 2019 to July 2019; and had an internship with the Social Security Administration (SSA) from January 2019 to April 2019. The Veteran reported he completed a college degree in accounting in 2019. There is no indication that the Veteran was employed from January 28, 2014 to June 6, 2016. Based on the foregoing, and in consideration of the pertinent medical findings, including the Veteran's reports that his barriers to employment included functional impairments as a result of his adjustment disorder, sleep apnea, headache syndrome, right elbow, right hip, left hip, lumbar strain, right upper extremity peripheral neuropathy, right knee, left knee, left ankle, right wrist, and linear scars, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities from January 28, 2014 to June 6, 2016. In this regard, the Veteran's adjustment disorder has been found to result in occupational and social impairment with deficiencies in most areas. See June 2016 private psychiatric evaluation. Specifically, the Board found that the severity of the Veteran's adjustment disorder symptoms resulted in a troubled marriage, difficulty socializing, irritability, agitation, serious and frequent suicidal ideation, violence or assaultiveness, chronic and nightly sleep disturbance, frequent insomnia, depression, fatigue, hopelessness and anhedonia, impaired impulse control, disorientation to time, anxiety, tension, anger, worry, rumination, fatigue, lack of motivation, mood lability, alcohol abuse, intermittent visual hallucinations, previous suicide attempts, increased absenteeism, decreased concentration, memory loss and poor social interactions and most importantly unemployment. Additionally, March 2013 VA examination reports, the April 2014 VA treatment record, November 2016 private headache examination, indicate that the Veteran's physical symptoms included pain; limited range of motion in the joints as well as difficulty standing, walking, sitting, driving, using stairs, sleeping, lying, crossing legs, lifting legs up, household chairs, and with yard work. Other functional impairments included stiffness, popping, clicking noises in the joints, flare-ups, one to three headaches per week that lasted one to four days and were described as pounding with occasional visual change prior to onset of headache pain, dizziness, lightheadedness, nausea, sensitivity to light, sensitivity to sound, disturbed concentration, dizziness, radiating pain, numbness and hypoactive reflexes. The Board notes that the Veteran did not work throughout the entire period from January 28, 2014 to June 6, 2016. The Veteran had remained unemployed and the evidence of record indicates that the continuing severity of his physical limitations in combination with his psychiatric symptoms prevented him from being able to meet the competitive standards for employment. Notably, the March 2021 Board decision found that the Veteran's occupational impairment due to psychiatric symptoms was significant, that he had persistent unemployment, and the June 2016 private psychiatric evaluation found the Veteran had significant psychosocial impairment in the work setting. Therefore, based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board concludes that he is unable to secure or follow a substantially gainful occupation consistent with his education and work history from January 28, 2014 to June 6, 2016. As such, entitlement to TDIU is warranted from January 28, 2014 to June 6, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, Associate 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.