Citation Nr: 22014492 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-58 751 DATE: March 14, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not prevent her from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1996 to May 1997. She provided testimony at a March 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. In June 2021, the Board remanded the matter on appeal. The appeal has returned to the Board for further appellate consideration. By rating actions issued in November 2021 and December 2021, the Regional Office (RO) granted service connection for low back and left knee disabilities; initial disability ratings of 20 and 10 percent, effective June 23, 2014 and June 19, 2014, respectively, were assigned. This represents a complete grant of her appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. Finally, there is a question as to whether the Veteran is currently represented in the present matter. This case was recertified to the Board in a January 2022 Board docket letter. In a December 2021 letter to the RO, received by the Board in February 2022, the Veteran's attorney submitted a motion to withdraw or cancel his representation in this Legacy appeal. Under VA regulation, when a request to withdraw representation is received after the appeal is certified to the Board, the representative is obligated to present a motion to the Board in writing demonstrating good cause to withdraw as the Veteran's representative. See 38 C.F.R. § 20.6 (a)(2) (effective February 19, 2019) (formerly 38 C.F.R. § 20.608 (2018)). Good cause for such purposes is the extended illness or incapacitation of the representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Id. The Veteran's attorney attempted to withdrew representation in a December 2021 letter to the RO, and after the claim had been certified to the Board. Under those circumstances, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion to the Board. Here, the December 2021 letter was sent to the RO, as opposed to the Board, and no reason for withdrawal was provided. Therefore, the Board concludes that Jan D. Dils continues to represent the Veteran in the present matter. See again 38 C.F.R. § 20.6 (a)(2) (effective February 19, 2019). The United States Court of Appeals for Veterans Claims (Court) has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. Here, the Veteran has asserted that she is entitled to a TDIU due to pain and physical limitations associated with her service-connected bilateral ankle and foot disabilities, as well as symptoms, such as difficulty concentrating and anger, stemming from her service-connected PTSD. As part of this appeal, the Veteran's TDIU stemmed from increased rating claims for her service-connected ankles and feet that were decided by the Board in another decision. Thus, her TDIU stems from the date of receipt of claim for an increased rating for her service-connected bilateral plantar fasciitis on November 28, 2011. Rice, supra. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, due to service-connected disabilities, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability, and consideration is given to the Veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16 (b). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, and as discussed below, the Veteran met the threshold requirements of entitlement to a TDIU as of November 28, 2011. At that time, she was service connected for multiple disabilities that include her bilateral lower extremities, including the bilateral factor, with a combined evaluation of 80 percent from November 28. 2011. 38 C.F.R. § 4.16. As of November 28, 2011, the Veteran's disability ratings are as follows: PTSD: 70 percent from January 14, 2016; Bilateral Plantar Fasciitis: Noncompensable from August 11, 2009 to November 28, 2011, and 50 percent from September 15 2016; Left Plantar Fasciitis: 30 percent from November 28, 2011 to September 15, 2016; Right Plantar Fasciitis: 30 percent from November 28, 2011 to September 15, 2016; Left Achilles Tendonitis: 20 percent from November 28, 2011; Degenerative Disc Disease Lumbar Spine: 20 percent from June 23, 2014; Right Achilles Tendonitis: 20 percent from November 28, 2011, excluding a temporary total rating from October 21, 2016 to December 1, 2016; Left Knee Degenerative Arthritis: 10 percent from June 19, 2014, and 20 percent from August 24, 2021; Radiculopathy Left Lower Extremity associated with Lumbar Spine Disability: 10 percent from June 23, 2014; Radiculopathy Right Lower Extremity associated with Lumbar Spine Disability: 10 percent from June 23, 2014; Right Ankle Scar: noncompensable from October 21, 2016; The Veteran has a combined rating of 80 percent from November 28, 2011, 90 percent from June 23, 2014 until the combined rating was 100 percent from January 14, 2016. As such, she has met the threshold criteria for a schedular TDIU as of November 28, 2011. At that time, the Veteran was service connected for multiple lower extremity disabilities that can be considered as one for purposes of meeting the schedular TDIU rating requirements due to the bilateral factor. See 38 C.F.R. § 4.25, Table 1; see also 38 C.F.R. § 4.26. 56.1, 38 C.F.R. § 4.25. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with her education and experience. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Essentially, in considering TDIU claims, the Board must fully consider a veteran's (1) history, (2) education, (3) skills, (4) training, and (5) physical and (6) mental ability. "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16 (a) comprises both economic and noneconomic components, which required consideration of a wide range of factors, and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, 30 Vet. App. at 148. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential non-physical employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). As the Veteran meets the schedular criteria for TDIU, the question remaining is whether she was unable to secure and/or follow a substantially gainful occupation due to her service-connected disabilities between November 28, 2011 and January 14, 2016 when a 100 percent schedular rating became effective. The Veteran contends that a TDIU is warranted because of the physical limitations imposed by her service-connected bilateral ankle and foot disabilities. See VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, received by VA in March 2014. She also maintains that because of her PTSD she is confrontational and argumentative and has difficulty concentrating and staying focused. See Transcript (T.) at pages 13. 18)). The Veteran maintains that she had last worked in 2012 as a corrections officer and that she had problems standing due to her feet. She contends that her employer was unable to make an accommodation for her because they did not have a sedentary position. Id. at pg. 7. On VA Form 21-8940, Veterans Application for Compensation Based on Unemployability, received by VA in March 2014, the Veteran indicated that she was unable work secondary to her service-connected ankles and feet. She reported that she had last worked in June 2012 as a correctional officer, that she had two (2) years of college education, that she had not lost any time from illness from her previous employment, that she did not leave her last position secondary to disability, and that she had not tried to find employment since leaving. On VA Form 21-4192, Request for Employment Information In Connection with Claim for Disability, received in February 2014, the Veteran's former employer, DPS, reported that she had worked as a correctional officer from August 9, 2010 to June 26, 2012, and that no concessions had been made during her employment due to any disability. VA Form 28-1902b, Counseling Record-Narrative Report, dated in March 2013, contains the Veteran's Rehabilitation Counselor's opinion that the Veteran's service-connected impairments placed her at an employment disadvantage compared to similarly situated employees. The Vocational Rehabilitation Counselor (VRC) opined that the Veteran's disabilities were the cause for the limitations in her duties that had required standing and walking. Thus, the VRC concluded that the Veteran was precluded from working in positions, such as her former job as correctional officer, sales associated or any position that would require prolonged standing. The VRC found the Veteran's service-connected disabilities placed her at a disadvantage as compared to similarly circumstanced Veterans. The VRC concluded that the Veteran was unable to obtain, maintain, or prepare for specific employment in the labor market that did not aggravate her service-connected disabilities. Therefore, the effects of the impairment contribute in an identifiable, measurable or observable way to her ability to obtain, maintain or retain employment consistent with her disabilities. The VRC found the Veteran's impairments to have been the result in substantial part from her service-connected disabilities. Overall, the VRC concluded that the Veteran met the criteria for an employment handicap due to the fact that her service-connected disabilities contributed substantially to her vocational impairment and she had not overcome the effects of her impairment through the effects of education transferable skills or obtaining and maintaining suitable work. In a June 2018 letter to South College (SC), the Veteran's VRC indicated that Veteran was working towards goal of employment as a paralegal, that SC had sponsored the Veteran from 2013 to 2015, that she had undergone some setbacks with her husband's sudden death and health-related issues, and was now able to move forward and complete her degree in paralegal studies. At the conclusion of VA examinations of the feet and ankles (January 2015 and August 2016), October 2016 (knees and ankles), July 2017 (ankles), and August 2021 (knee and lumbar spine) the examiners' collectively opined that the Veteran may have difficulty performing heavy lifting and maintaining a prolonged standing position and weight-bearing without resting, as well as climbing ladders and stairs, kneeling or any sudden motion due to her bilateral foot pain, bilateral achilles tendon pain and left knee disability. Regarding sedentary employment, the October 2016 VA examiners concluded that the Veteran's left knee disability and bilateral achilles tendonitis could negatively affect her ability to sit for prolonged periods of time without getting up to walk around, and that pain from her bilateral achilles tendonitis, as well as treatment for it, might affect her ability to concentrate on sedentary activities. At the close of a July 2017 exanimation of the ankles, the VA examiner opined that the Veteran's bilateral achilles tendonitis would not be expected to affect her ability to perform sedentary labor. The Board has considered the Veteran's education, training, and work history and after weighing all the evidence, the Board finds probative value in the October 2016 VA examiners' opinions that the Veteran is unable to perform manual labor, and that her left knee disability might affect her ability to sit for prolonged periods of time without getting up to walk around, and that pain from her bilateral achilles tendonitis, as well as treatment for it, might affect her ability to concentrate on sedentary activities. Conversely, at the close of a July 2017 exanimation of the ankles, the VA examiner opined that the Veteran's bilateral achilles tendonitis would not be expected to affect her ability to perform sedentary labor. While the opinions concluded that the Veteran's disabilities have impacted her ability to work, the opinions did not specifically indicate that the Veteran is precluded from, work entirely. Further, while a March 2013 Vocational Rehabilitation program counseling report noted the Veteran's has service-connected physical disabilities, it stated that the Veteran's vocational goals (paralegal) do not require physical labor. The Veteran testified that she had continued to seek her degree in paralegal studies and expected to graduate that summer. Here, there is no dispute that the Veteran's service-connected orthopedic disabilities caused impairment. The Veteran has also stated that she has difficulty working around others because she could be argumentative and confrontational. However, the evidence of record does not support the conclusion that the Veteran's service-connected disabilities render her unable to obtain or maintain substantially gainful employment. Moreover, the Veteran was not service connected for his psychiatric impairment until January 14, 2016, when the 100 percent schedular rating was assigned. As noted, in determining whether a TDIU is warranted, the Board considers a veteran's (1) history, (2) education, (3) skills, (4) training, and (5) physical, and (6) mental ability. Here, the Veteran stopped working at a job which required her to be on her feet. Such employment became impossible with the Veteran's service connected foot and knee problems. However, the fact that one job was incompatible with the Veteran's service connected disabilities is not sufficient to find a Veteran unable to obtain or maintain substantially gainful employment. The Veteran acknowledged as much when she said that she had to leave her previous job because there was not a sedentary option. It was for this reason she enrolled in paralegal school which would presumably allow her to find sedentary work upon graduation. As such, prior to January 2016, the Veteran's school was providing her with the skills to undertake a job which would not be precluded by her service connected disabilities. It is noted that her mental disabilities were not service connected until she started receiving the 100 percent schedular rating. As such, the impairment from a mental disorder prior to January 14, 2016 will not be considered in determining whether a TDIU should be assigned. Here, the Veteran has been unemployed since June 2012; however, during that time she enrolled in school to obtain her degree in paralegal studies. As such, the fact that she had been able to perform such course work and would presumably seek employment upon earning her paralegal degree is consistent with the ability to engage in substantially gainful employment. The Board notes that the Veteran has not advanced any medical or vocational evidence to the contrary. Accordingly, a TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.