Citation Nr: 21041714 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 10-36 477A DATE: July 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is granted for purposes of substitution, effective March 11, 2009 to December 29, 2010, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all doubt in the appellant's favor, as the substituted claimant for the Veteran, the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment, effective March 11, 2009. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met, effective March 11, 2009 to December 29, 2010, for purposes of substitution. 38 U.S.C. §§ 1155, 5121A; 38 C.F.R. §§ 3.340, 3.341(a), 3.1010, 4.16 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1978 to April 1980. He died in December 2020. This matter comes to the Board of Veterans' Appeals (Board) from an Agency of Original Jurisdiction (AOD) August 2009 rating decision of the Department of Veterans Affairs (VA). In January 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing. After the Veteran's death in December 2020, the appellant, as the Veteran's surviving spouse, requested to be substituted as the claimant for the Veteran's claims pending at the time of his death. This request for substitution was granted by the AOJ in January 2021 correspondence. Therefore, 38 U.S.C. § 5121A and implementing regulation 38 C.F.R. § 3.1010 are applicable, and the appellant has been properly substituted as the claimant in this appeal. The Board most recently remanded this case for additional development in April 2021. As the AOJ substantially complied with the Board remand directives, the case has now been returned for appellate review. 1. Entitlement to a TDIU for purposes of substitution The appellant seeks entitlement to a TDIU as the substituted claimant for the Veteran. The Veteran filed his formal TDIU claim in August 2008. In an August 2013 rating decision, the AOJ awarded a 100 percent rating for an acquired psychiatric disorder, effective December 29, 2010. Assigning a total schedular rating does not in every instance render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). More specifically, the issue of TDIU is not moot when it could be granted for a disability other than the disability for which a 100 percent rating is in effect because there would be no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. However, the evidence of record does not establish that a single disability renders the Veteran unemployable prior to December 29, 2010. Instead, the combined effects of the Veteran's service-connected bilateral knee and cervical spine disabilities are it issue in determining whether the Veteran is capable of substantially gainful employment prior to December 29, 2010. Thus, the issue of entitlement to a TDIU is rendered moot for the period from December 29, 2010, as the Veteran has a total schedular rating for an acquired psychiatric disorder. Resolving all doubt in the appellant's favor, as the substituted claimant for the Veteran, the Board concludes that the evidence supports a finding that the Veteran's service-connected disabilities rendered him unemployable, effective March 11, 2009 to December 29, 2010. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 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, 529 (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 age or the impairment caused by non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The 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). Prior to the Veteran's December 29, 2010, award of a 100 percent disability evaluation due to schizophrenia, service connection was in effect for the following: (1) left shoulder strain, rated 20 percent disabling from August 26, 2008; (2) cut of the right medial meniscus, rated 10 percent disabling from August 3, 2006; (3) tear of the left lateral meniscus with traumatic arthritis, rated 10 percent disabling from August 3, 2006; (4) lateral instability of the right knee, rated 10 percent disabling from August 26, 2008; (5) lateral instability of the left knee, rated 10 percent disabling from August 26, 2008; and (6) cervical spine strain, rated 10 percent disabling from August 26, 2008. Thus, the Veteran's combined evaluation for his service-connected disabilities from August 26, 2008 to December 29, 2010 is 60 percent. See 38 C.F.R. § 4.25 (with consideration of the bilateral factor of 3.8% for the bilateral knees under Diagnostic Codes 5727 and 5260). While the Veteran had multiple service-connected disabilities prior to December 29, 2010, the service-connected left shoulder, bilateral knees, and cervical spine disabilities are all a part of the orthopedic system. For purposes of determining one 60 percent disability for a TDIU, disabilities of a single body system, e.g., orthopedic disabilities, are considered as one disability. See 38 C.F.R. § 4.16 (a)(3). As such, the Veteran meets the schedular requirements for a TDIU, effective August 26, 2008, as he has one disability rated at 60 percent disabling. See 38 C.F.R. § 4.16 (a). Prior to August 26, 2008 the combined rating was 20 percent (10 percent for left knee disability; and 10 percent for right knee disability) and as such, he did not meet the threshold requirements for TDIU consideration and his claim would be considered on an extraschedular basis. The Veteran's work history as noted on his formal TDIU claim filed on August 26, 2008 was concrete engineer and finisher, and forklift operator; and he noted that he last worked full time in 2006 a concrete finisher. See August 2008 VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Thus, his work history is consistent with manual labor type positions. He is not noted as having any other specialized training. He completed one year of college. Id. A vocational assessment performed by the Tennessee Department of Human Services in March 2004 notes that the Veteran had the residual functional capacity for lower-leveled semi-skilled work but had performed no vocationally relevant past work and had no skills present. A September 2008 VA examination report noted that the Veteran should be able to perform sedentary or possibly light duty work; but heavy labor would worsen his symptoms of his knee disabilities. An examination addressing the cervical spine notes that the Veteran reported that he was a heavy laborer and that his neck pain affected his job and daily activities in that he was not able to do any sort of heavy lifting or twisting. The examiner found that the cervical spine disability was related to his recent work injury and did not provide an opinion as to the effect of the cervical spine disability on the Veteran's employability. The Veteran applied for community college in December 2010 for a degree in Computer Information Systems. A February 2011 VA vocational counseling record notes that the Veteran had an impairment in employability. It was noted that his limitations were a direct result of his service-connected spine, knees and (at the time) non-service-connected bipolar disorder. A March 2011 VA social worker note shows the Veteran's work history involved loading trucks, production work at a cotton factory, food factory, and construction. The Veteran was presently unemployed. He said that he could work but was having trouble with his back (nonservice-connected), knees, and neck pain. In May 2011, a VA treatment record notes that based upon clinical findings and diagnostic tests, the treatment provider could not state that the Veteran was totally incapable of working as it related to his cervical disc disease. A May 2011 VA social worker note shows the Veteran reported that he was told by his doctor that he could not work. He noted that he could work for about an hour a day. A November 2011 VA primary care nursing note shows that the Veteran needed medical clearance to work. He was walking with a cane. A January 2015 VA treatment record notes that the Veteran was hoping to get involved with supportive employment. In April 2020, the AOJ procured medical opinions concerning the functional impact of the Veteran's bilateral knees, left shoulder, and cervical spine disabilities. A September 2020 Disability Benefits Questionnaire (DBQ) medical opinion found that the Veteran would be unable to perform sedentary work as a result of his cervical spine disability. DBQs in November 2020 found that the knees and shoulder would impact physically demanding work, but not sedentary work. It was noted that the Veteran had to use a walker for the knees. Overall, the medical evidence of record demonstrates that the Veteran was unemployable prior to December 29, 2010. While there was some discrepancy in the Veteran's employability as noted on opinions in September 2008 and May 2011 regarding the cervical spine, the 2020 opinions support that the Veteran's service-connected knee and cervical spine disabilities prevented him from working. As the opinions noted that the Veteran was precluded from both sedentary and physically demanding work and considering that the Veteran's work history with an emphasis on manual labor, the medical opinions in 2020 support that the Veteran's orthopedic disabilities rendered him unemployable. Even though the Veteran meets the schedular criteria for a TDIU, effective August 26, 2008, and there are positive medical opinions of record that the Veteran was unemployable due to service-connected disabilities, the evidence of record shows that the Veteran stopped working on a full-time basis on March 11, 2009. See, e.g., April 2009 statement from the Veteran was that he was not employed after work injury on March 11, 2009; and June 2009 VA examination report, noting the Veteran was "let go" in March 2009 and was waiting on his worker's compensation suit he filed. The Veteran was apparently still working on a full-time basis as of September 2008. See VA-Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, dated September 11, 2008, noting that the Veteran was presently substantially employed in General Production at Pictsweet Co. A statement dated March 16, 2009 notes that on March 12, 2009, the Veteran left a voicemail that he had been hit by a forklift, but others did not confirm the incident. It was noted that the Veteran was terminated for not reporting the injury and that he had been previously reprimanded and suspended for performance and disciplinary issues. While there is some discrepancy as to the reason why the Veteran stopped working, the medical evidence supports that the Veteran's service-connected disabilities rendered him unemployable as of March 2009. It was noted as early as September 2008 that even though the Veteran could perform sedentary or possibly light duty work, heavy labor (which is the type of work experience he had) would worsen his knee disabilities. In February 2011, the Veteran was found to have an impairment in employability related to his service-connected spine, knees and (at the time) non-service-connected bipolar disorder. As of March 2011, the Veteran was unemployed and was having trouble with his back (nonservice-connected), knees, and neck pain. The Veteran noted on a May 2011 VA social worker note that he was told by his doctor that he cannot work. The Veteran was seeking medical clearance for work in November 2011. None of the later evidence of record suggests that the Veteran was working. As noted, the opinions in 2020 confirm that the Veteran's cervical spine and knee disabilities prevented employment. Resolving all doubt in the appellant's favor, as the substituted claimant for the Veteran, the record shows that he was unemployable, effective March 11, 2009, the date he reportedly stopped working full-time and met the schedular criteria for a TDIU. The Director of Compensation and Pension provided an opinion in April 2021 that the Veteran was not unemployable due to his service-connected disabilities prior to August 26, 2008. A TDIU determination is left to the Board's discretion, not a medical examiner's discretion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects a disability, or disabilities, have upon a person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Similarly, the Veteran is competent to report symptoms that he experiences which are observable through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Also, of note, while the opinion from the Director of Compensation and Pension was requested based on the premise that the Veteran did not meet the schedular criteria for a TDIU prior to December 29, 2010, his combined ratings do, in fact, meet the schedular criteria under 38 C.F.R. § 4.16 (a), effective August 26, 2008, as noted above. The time frame prior to August 26, 2008, is not at issue as the record indicates that the Veteran was gainfully employed at the time. Based on the evidence of record, all doubt is resolved in the appellant's favor, as the substituted claimant for the Veteran, that the Veteran's service-connected disabilities rendered him unemployable, effective March 11, 2009 to December 29, 2010, as the Veteran reportedly was working on a full-time basis prior to that time. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.