Citation Nr: 21041952 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-49 832 DATE: July 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. Entitlement to an increased rating for residuals of fracture of the 5th metatarsal of the right foot is remanded. Entitlement to an increased rating for left leg shin splints is remanded. Entitlement to an increased rating for bilateral pes planus is remanded. Entitlement to an increased rating for left ear hearing loss is remanded. Entitlement to an increased rating for lumbar strain is remanded. FINDING OF FACT The Veteran has not been able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2008 to October 2012. He appealed a September 2016 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in January 2021. A transcript is of record. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled 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). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran asserts he is unemployable due to his service-connected disabilities. See March 2016 VA Form 21-8940. The Veteran is service-connected for PTSD; lumbar strain; tinnitus; bilateral pes planus; right knee strain; left knee strain; left ear hearing loss; residuals of fracture of the 5th metatarsal, right foot; and shin splints, left leg. The Veteran has a combined disability rating of 90 percent from March 31, 2016, and 80 percent from July 20, 2016. Thus, the Veteran has met the threshold requirements for TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). The narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type 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. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran reported that he last worked for another employer in February 2016, and that he was currently self-employed performing pest control services. The Veteran reported earning $10,000 in income in 2020. See March 2016 VA Form 21-8940; see also January 2021 Hearing Transcript. Other documents show the Veteran previously worked as a security guard from May 2014 to April 2015, and for a pest control company from April 2015 to July 2015. See May and April 2016 VA Forms 21-4192, respectively. Additionally, the Veteran reported completing four years of college. The Federal Circuit has held that 38 C.F.R. § 4.16 (b) "does not require the veteran to show 100 percent unemployability in order to prove that he cannot 'follow substantially gainful occupation.'" Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Instead, "[t]he use of the word 'substantially' suggests an intent to impart flexibility into a determination of the veteran's overall employability." Id. Additionally, employment "in a protected environment" is not sufficient to establish substantially gainful occupation. 38 C.F.R. § 4.16 (a). While the meaning of "employment in a protected environment" is not clear from the plain language of § 4.16, employment of this type frequently involves accommodations for the employee. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-391 (2017). The Veteran testified that he works parttime operating his own pest control business. He explained that he was unable to keep up with a company or work at a pace that would allow him to maintain constant employment, and that he had to leave several jobs because supervisors did not understand the Veteran's mobility limitations. See Hearing Transcript, pp. 16-17. The Board finds that the Veteran's self-operated business constitutes a protected environment, as he can work as much or as little as his disabilities allow on any given day, and even then he has limited himself to part-time work. With respect to medical evidence, the July 2016 VA PTSD examination report characterized the Veteran's PTSD as resulting in occupational and social impairment with reduced reliability and productivity, and noted that among his symptoms were impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The July 2016 foot examination report noted the Veteran had difficulty with prolonged standing and walking long distances. A January 2021 report from Dr. B.D. noted that the Veteran's orthopedic disabilities caused him pain with periods of standing, walking, and climbing stairs, and that he required the use of a cane during flare-ups. The Board observes that the Veteran completed four years of college and attempted to pursue vocational rehabilitation but discontinued that effort. However, the Board finds significant that the Veteran worked in manual labor positions throughout the appeal period and left several jobs due to difficulties stemming from his service-connected disabilities. Therefore, having considered the Veteran's history, education, skill, and training along with the evidence of record, the Board finds that the Veteran has been rendered unable to obtain and maintain a substantially gainful occupation due to limitations resulting from a combination of his service-connected disabilities. REASONS FOR REMAND The Veteran has asserted that his service-connected PTSD, residuals of fracture of the 5th metatarsal of the right foot, left leg shin splints, bilateral pes planus, left ear hearing loss, and lumbar strain have worsened in severity since his last examinations in July 2016. See February 2018 VA Form 21-0820 and January 2021 Hearing Transcript. Where a Veteran contends that a disability has worsened since his last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). On remand, the AOJ should afford the Veteran new examinations to determine the current severity of his PTSD, foot, left leg, left ear, and low back disabilities. The matters are REMANDED for the following actions: 1. Obtain any updated relevant VA and/or private treatment records that have not already been obtained and associate the same with the claims file. 2. After any outstanding records have been obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. 3. After any outstanding records have been obtained, schedule the Veteran for a new VA examination to assess the current nature and severity of his service-connected bilateral pes planus and residuals of fracture of the 5th metatarsal of the right foot. The claims file and a copy of this remand must be provided to the examiner in conjunction with the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. 4. After any outstanding records have been obtained, schedule the Veteran for a leg examination to determine the current severity of the residuals associated with the Veteran's left leg shin splints. The examiner must test the active motion and passive motion and note the presence of any pain during weight bearing and non-weight bearing. The examiner must also elicit information concerning the severity, frequency, and duration of flare-ups, and the degree of functional loss during flare-ups and following repetitive use over time. The examiner should state if the Veteran's shin splints result in painful motion and/or instability in the left knee and/or ankle. If the examiner is unable to provide a specific measurement or an opinion regarding symptoms or functional impairment during flare-ups and following repetitive use over time, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of the medical community's knowledge and the known facts), a deficiency in the record (i.e., additional facts are necessary), or the examiner's expertise (i.e., does not have the knowledge or training). 5. After any outstanding records have been obtained, schedule the Veteran for an audiology examination to assess the current severity of his service-connected left ear hearing loss. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. 6. After any outstanding records have been obtained, schedule the Veteran for an examination of the current severity of his low back disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, 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). The examiner should note that the Veteran is competent to report flare-ups, as the symptoms are observable by a lay person. The examiner is also requested to indicate whether the Veteran's back disability results in any neurologic impairments, to include radiculopathy of the bilateral lower extremities, and, if so, the nature and severity of such neurologic impairment. In this regard, the examiner is directed to conduct all indicated testing necessary to determine the presence of any radiculopathy. 7. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.