Citation Nr: 22010590 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 13-07 258 DATE: February 24, 2022 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to May 5, 2017 is granted. Entitlement to statutory special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities have precluded the Veteran's employment since June 14, 2011. 2. The Veteran does not have any disability rated at 100 percent disabling, including a single disability on which TDIU may be based. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU have been met as of June 14, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. 2. The criteria for entitlement to SMC under 38 U.S.C. § 1114(s) have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 4.16, 4.25, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2019, the Board issued a decision denying entitlement to a TDIU prior to May 5, 2017. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Order, the Court granted a joint motion of the parties and remanded the case to the Board for action consistent with the joint motion. The Board again denied the claim in a July 2020 decision and the Veteran again appealed to the Court. In a July 2021 Order, the Court granted joint motion of the parties and remanded the case to the Board for action consistent with the joint motion. The case is now again before the Board. 1. Entitlement to a total rating based TDIU prior to May 5, 2017 The Veteran asserts that his service-connected disabilities render him unable to obtain or follow substantially gainful employment prior to May 5, 2017 and thus he is entitled to a TDIU. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there are two or more disabilities, there must 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). In the instant case, the Veteran is service connected for a mood disorder (evaluated as 70 percent disabling effective December 16, 2009); obstructive sleep apnea (evaluated at 50 percent disabling effective December 16, 2009) low back strain (evaluated as 40 percent disabling effective September 10, 1999); radiculopathy of the right lower extremity, sciatic nerve (evaluated as 40 percent disabling effective January 19, 2016); radiculopathy of the left lower extremity, sciatic nerve (evaluated as 40 percent disabling effective January 19, 2016); radiculopathy of the right lower extremity, femoral nerve (evaluated as 20 percent disabling effective May 5, 2017); and radiculopathy of the left lower extremity, femoral nerve (evaluated as 20 percent disabling effective May 5, 2017). His combined disability ratings are as follows: 80 percent disabling from December 16, 2009 to January 19, 2016 and 100 percent disabling thereafter. Therefore, the Veteran meets the schedular threshold criteria for consideration of a TDIU from December 16, 2009. 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 his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). During service, the Veteran's military occupational specialty (MOS) included food service specialist. Thereafter, the record shows that the Veteran last worked for as a sales representative for a telecommunications company until June 2011. As the evidence does not suggest, and the Veteran has not contended, that his work through June 2011 was not substantially gainful employment, the Board thus finds his actual employment as highly probative that his service-connected disabilities did not preclude employment prior to that date. Specifically, the Board notes that the Veteran's employer indicted that he worked 40 hours a week earning an amount greater than the poverty threshold and last worked on June 13, 2011. Thus, the Board will consider whether the criteria for TDIU are met as of June 14, 2011. At a February 2011 VA spine examination, the Veteran reported that his back disability limits him being able to walk no more than 100 yards on average. The examiner noted that the Veteran's walking was unsteady but that he does not require an assistive device for ambulation. The examiner opined that the Veteran's low back strain has minimal effect on his usual occupation, and minimal effect on his daily activity. At a March 2011 VA mental health examination, the Veteran reported an okay relationship with his supervisor and co-workers but reported difficulty maintaining motivation and concentration with his work. He also reported that his work causes panic attacks that affects his ability to function independently. The examiner opined that the Veteran has difficulty establishing and maintaining effective work/school and social relationships because he tended to keep to himself at work. The examiner also noted an intermittent inability to perform activities of daily living, because he often had difficulty dealing with the day-to-day activities that are required for him to do in his work or home life and observed the Veteran to have impaired attention and/or focus. The examiner opined that the Veteran's psychiatric symptoms manifest in occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. A December 2011 VA psychiatry note indicates that the Veteran experiences both depression and a cognitive disorder that is due to both his depression and his severely symptomatic undertreated sleep apnea. The doctor opined that the Veteran has major impairment in multiple areas due to his cognitive impairment and depressive syndrome and is incapable of any gainful employment. A December 2011 SSA medical record of a mental residual functional capacity assessment indicates that the Veteran is moderately limited in: the ability to understand and remember detailed instruction; ability to carry out detailed instructions; ability to work in coordination with or proximity to others without being distracted by them; ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and the ability to accept instructions and respond appropriately to criticism from supervisors. The assessment did not show the Veteran had marked limitations in any category. A January 2012 SSA physical residual functional capacity assessment lists only the following limitations for the Veteran due to his back disability: frequently carrying 10 pounds, occasionally carrying 20 pounds, standing and/or walking for 6 hours, and sitting for 6 hours. At a February 2012 VA examination, the VA examiner opined that the Veteran's low back strain has no impact on his ability to work. The examiner noted that the Veteran would not attempt the full examination, and sat at 90/90 posture, but that when standing, he would not range more than five to 10 degrees. The examiner noted that the Veteran demonstrated conscious behaviors and irrational response that was detrimental to the process and added no value to the examination. The examiner noted the Veteran is currently on social security for a multitude of issues but opined that the current low back as the "single sole issue" for unemployability was insufficient to prevent employment. At a February 2012 VA psychiatric examination, the examiner opined that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted the Veteran to be very groggy and to mumble his answers with long pauses. He reported he was an outstanding employee until he had a heart attack in 2010. The examiner opined that the Veteran's major depression diagnosis does not render him unemployable. An April 2012 medical statement of ability to do work-related activities submitted in connection with his SSA claim states that the Veteran's mental health condition and severely symptomatic sleep apnea have a marked effect on his ability to understand, remember, and carry out simple instructions and make judgments on simple work-related decisions and an extreme effect on his ability to understand, remember, carry out, and make judgments on complex instructions. He was also noted to have marked limitations in interacting appropriately with the public, supervisors, and co-workers and an extreme limitation in responding appropriately to usual work situations and changes in a routine work setting. The doctor stated that the Veteran's slowed cognitive processing that prevent him from interacting with others in a spontaneous manner, and that his depression and cognitive disorder prevent him from adapting well to new or changing situations. He was also noted to have short term memory limitations, with his cognitive issues attributed to his depression and his sleep apnea. A June 2012 letter indicates that the Veteran's former employer approved long term disability benefits for the Veteran beginning June 19, 2012. The letter indicates the Veteran had received short term disability benefits until June 18, 2012. In his September 2015 notice of disagreement, the Veteran stated that he had been approved disability through the SSA due to medical and mental health impairments. He reported his physical disabilities included his back, hypertension, diabetes mellitus, hyperlipidemia, and coronary artery disease. He reported that he relies on a cane and walker for ambulation and requires the assistance of a caregiver for activities of daily living. In January 2016, a VA examiner opined that the Veteran is limited in sitting, standing, and walking by his chronic low back pain and his weakness of the lower extremities has resulted in frequent falls. The Veteran reported he spends most of the bed in day because of his back pain and lower extremity weakness. A March 2017 VA Vocational Rehabilitation counseling record states that the Veteran has: "[N]o formal training past high school. He does not have a degree that would qualify him for suitable employment. The individual cannot return to previous jobs of truck driving because they require too much sitting lifting walking and standing. Although the individual was trained in the military as a cook, this type of work is no longer appropriate because it requires him to stand for long periods of time. The individual has not been actively searching for employment he has applied for I.U. Unemployment is outside the individual's control." The Board finds that giving the Veteran the benefit of the doubt, he is entitled to TDIU as of June 14, 2011, the day after his last day of employment. The Board specifically notes that a VA doctor in December 2011 opined that the Veteran is incapable of any gainful employment, noting his depressive syndrome and cognitive impairment. That doctor, as well as other evidence, attributed the Veteran's cognitive impairment to both his depression and his obstructive sleep apnea. The Veteran is service connected both for his mental health condition and sleep apnea. The Board finds that those disabilities combined rendered the Veteran unemployable as of June 14, 2011. Thus, based on the forgoing, the Board finds that giving the Veteran the benefit of the doubt, entitlement to TDIU as of June 14, 2011, but not earlier, is warranted. 2. Entitlement to SMC under 38 U.S.C. § 1114(s) As the Board has found entitlement to TDIU, the Board has also considered whether entitlement to special monthly compensation is warranted. Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable when a veteran has a service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s)(1). SMC under 38 U.S.C. § 1114(s) is also payable when a veteran has a service-connected disability rated as 100 percent and is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s)(2). This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.§ 1114(s). However, the Court has held that a TDIU rating "that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that requirement must be met by a single disability." Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Therefore, it is necessary to determine first, if any one of the Veteran's service-connected disabilities qualifies him to meet the criteria for TDIU. Prior to January 2016, the Veteran was service connected for three disabilities: a mood disorder evaluated as 70 percent disabling, obstructive sleep apnea evaluated at 50 percent disabling, and low back strain evaluated as 40 percent disabling. The Board finds that the evidence is persuasive that none of the Veteran's service-connected disabilities alone rendered the Veteran unemployable. Specifically, the evidence supporting that the Veteran was unemployable prior to January 2016 is clear that it is both the Veteran's mental health condition and his sleep apnea that cause such a level of impairment that he is unemployable. In February 2012 a VA examiner opined specifically that the Veteran's major depression diagnosis alone does not render him unemployable. The December 2011 psychiatry note in which the doctor opined that the Veteran is not capable of any gainful employment, noted his impairment is due both to his depression and his cognitive disorder, which is contributed to by his depression and his sleep apnea. An April 2012 medical statement from the Veteran's SSA claim also discusses that it is both the Veteran's mental health condition and severely symptomatic sleep apnea that cause limitations in his work functioning. The Veteran is also service connected for low back strain; however, the Board finds that the evidence is persuasive that his back disability alone also does not cause unemployability. The February 2012 VA examiner indicated that the Veteran did not attempt the full examination and opined that his back disability would not alone prevent employment. In January 2016, the Veteran underwent another VA examination of his back. That examination indicated significant limitations in sitting, standing, and walking; however, those limitations were attributed to both the Veteran's back disability as well as his bilateral lower extremity radiculopathy, for which the Veteran is service connected as of January 2016. The Board acknowledges the March 2017 VA Vocational Rehabilitation record that indicates that the Veteran is limited in sitting, lifting, walking, and standing, which would preclude employment as a truck driver or a cook. However, the evidence is not in approximate balance that the back disability alone prevents the Veteran's employment. Further, the Board notes that the Veteran has experience in retail sales in addition to truck driving and cooking, a job which may have provided necessary skills to perform a sedentary job. Based on the forgoing, the Board finds that the Veteran does not have a single disability on which TDIU may be based. Therefore, the criteria for entitlement to 38 U.S.C. § 1114(s) are not met. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.