Citation Nr: 22016004 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-25 745 DATE: March 21, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities precludes him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to May 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2016 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2020. In April 2021, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Of note, in February 2022, the Veteran filed a VA Form 20-0996, Decision Review Request: Higher-Level Review for the present claim. A review of the VA Form 20-0996, however, shows that the Veteran did not check the box on the form indicating that he was opting into the Appeals Modernization Act (AMA) from the December 2021 Supplemental Statement of the Case. The VA Form 20-0996 cannot be considered a valid AMA opt-in. Thus, the Veteran's current appeal will continue in the Legacy system. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran meets the schedular percentage requirements for TDIU under 38 C.F.R. § 4.16(a). During the pendency of the appeal and prior to June 25, 2021, the Veteran has been service connected for bilateral pes planus, evaluated as 50 percent disabling, for residuals of a right knee injury, evaluated as 10 percent disabling, for residual of a face laceration on the left side, evaluated as 10 percent disabling, for a left cheek scar, evaluated as 10 percent disabling, and for a stab wound of the back, evaluated as noncompensable. The combined disability rating was 70 percent. Since June 25, 2021, the Veteran has also been service-connected for residual back pain associated with a stab wound, evaluated as 40 percent disabling. The combined disability rating is 80 percent. The Veteran contends that his service-connected disabilities render him unemployable. At the Veteran's August 2020 Board hearing, he stated that he practiced massage therapy for several years before moving to Ohio, where he was a truck driver. He noted that the back wound made it so that if it started to twinge, he had to lay down until it stopped seizing. He stated that he was limited to a couple of hours to do anything. He stated that sitting and walking exacerbated his disabilities, as well as standing up. He noted that if he could sit well, he would be driving a truck, and if he could stand, he would be doing massage therapy. However, he could not do either without experiencing pain or his back seizing. Regarding his service-connected pes planus and knee disabilities, he noted that he could not do anything for any length of time without having to lay down. The Veteran notes that he has been unable to work since 2001. A review of the Veteran's Social Security Administration (SSA) records shows information regarding his work history, to include truck driving, a driver and cook at a pizza restaurant, massage therapist, working at a nightclub, as a limousine driver and a carpenter. An August 2015 SSA correspondence reflects that the Veteran is not in receipt of benefits. A September 2015 VA examination report shows that regarding the Veteran's service-connected bilateral pes planus and residuals of a right knee injury with chondromalacia and degenerative joint disease, the VA examiner noted that the Veteran could walk a 1/2 mile, could stand for 5 minutes, and could climb one step at a time which would impair his ability to perform prolonged standing or walking in a physical or sedentary environment. In a December 2015 statement, the Veteran noted that he had been trained in deep tissue neuromuscular therapy since 1991. He noted that his conditions affected his ability to do his job. A May 2018 VA scars examination report shows that for the Veteran's left facial scar and mid back scar, the VA examiner noted that the conditions did not impact his ability to work. A May 2018 foot conditions examination report and a May 2018 knee and lower leg conditions examination report both show that the Veteran noted he experienced daily flare-ups of pain in his bilateral feet and his right knee, which reduced his ability to stand or walk. The VA examiner noted that both of the Veteran's conditions did not impact his ability to perform any type of occupational task. A June 2018 private medical note shows that the social worker noted that the Veteran had difficulty in his daily functioning due to his mental and physical disabilities. The private social worker noted the Veteran's psychiatric condition, to include depression and manic states. It was also noted that the Veteran suffered from stress-induced dermatitis on his hands which caused pain and prevented him from doing many things with his hands. A November 2018 correspondence from the same social worker indicates the same. A December 2019 VA knee and lower leg conditions examination report shows that the VA examiner noted that the Veteran reported difficulty kneeling, squatting, and walking up steps. This affected his ability to perform prolonged physical activities that required these movements. It was noted that he could perform prolonged sedentary activities. Pursuant to the April 2021 Board remand, the Veteran was afforded a VA back examination in June 2021. The VA examiner noted that for the Veteran's condition, frequent bending would be difficult. The Veteran was afforded a VA knee and lower leg examination in June 2021. The VA examiner noted that for the Veteran's condition, prolonged standing, walking and frequent squatting would be difficult. For both conditions, it was noted that the Veteran had limitations for prolonged standing at work, especially in weight-bearing work. The Veteran was capable of working in positions that did not require continuous standing. He also could work continuously in a sedentary position without difficulty. The Veteran was afforded a VA muscles injuries examination in June 2021. The VA examiner noted that for the Veteran's condition, frequent bending would be difficult. The Veteran was afforded a VA scars examination in June 2021. No functional impact was noted. The Veteran was afforded a VA foot examination in June 2021. The same VA examiner noted that for the Veteran's condition, prolonged standing and walking would be difficult. In a September 2021 medical addendum, the VA examiner noted arch supports were not effective in providing the Veteran relief from the service-connected condition. The Veteran was afforded a VA scars examination in December 2021. The VA examiner stated that the Veteran's scars caused no limitations on his ability to work. A December 2021 VA medical opinion notes a review of the Veteran's claims file, service-connected and nonservice connected disabilities. The VA examiner discussed the Veteran's psychological evaluations associated with his claims file. In addition, the VA examiner noted that for the Veteran's service-connected bilateral pes planus, the Veteran had stated that the pain in his feet prevented his from standing for long periods of time, and that walking for long distances was painful. It was noted that he would have difficulty with vocations that required him to be on his feet for much of his shift. For the Veteran's service-connected right knee, the Veteran noted that he had pain in his knee with prolonged sitting and driving, and with prolonged standing and walking. It was noted that he would have difficulty with vocations that required him to be on his feet for much of his shift. He would have difficulty in positions that did not allow for him to get up frequently. He could not squat, kneel, crawl, or climb easily. For the Veteran's service-connected residuals of a stab wound, the Veteran maintained that he had experienced sharp nerve pains down his back from the wound site since the incident. The VA examiner stated that there were no x-ray results to determine whether there was more to the back issue. However, the Veteran's complaints of pain were consistent with his medical records. He had difficulty and pain with sitting or standing for long periods of time, and with walking long distances. It was noted that he could not bend over easily and could not pick items up from the floor. He had sleep disturbances due to the pain. For the residuals of the left cheek scar, the Veteran stated that the scar was painful and tender to palpation. The VA examiner noted that this did not affect his ability to work. The VA examiner also noted that the Veteran had some psychiatric issues that had been addressed in prior examinations. It was noted that the Veteran would have difficulty focusing on a task and allowing him to finish it, as he easily became focused on his pain and his problems and was not easily redirected. The VA examiner concluded that it would be very difficult to find an occupation the Veteran could successfully manage. He would need a job that did not require much time on his feet, but would also allow him to get up frequently, and not require strenuous physical activity. As far as sedentary "desk" jobs, the Veteran would have difficulty with remaining focused on his task. He would have difficulty doing customer service work, as he would most likely argue with customers. He had attempted schooling at least twice, but had not successfully completed the program, or was not able to work in the field for which he trained. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the finding that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. Of note, the Veteran is not service connected for a psychiatric disorder. However, from the VA examination reports, the Veteran's statements, and the cumulative effect of all of the Veteran's service-connected disabilities, the Board finds that the sum of the evidence is at least in equipoise to show that his disabilities preclude his performance of duties necessary to obtain and follow substantially gainful employment consistent with his education and employment background, which reflects largely active, rather than sedentary, occupations in the past. Accordingly, the Board will resolve reasonable doubt in the Veteran's favor and find that his service-connected disabilities precluded him from securing and following all forms of substantially gainful employment consistent with his education and work experience. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU is thus granted for the entirety of the appeal. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.