Citation Nr: 22016372 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 12-20 974A DATE: March 22, 2022 ORDER From November 21, 2008, entitlement to a total disability rating based on individual unemployability is granted. FINDING OF FACT From November 21, 2008, the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW From November 21, 2008, the criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army Reserves from November 1988 until his honorable discharge in June 1989. He then served on active duty in the United States Army from May 1994 until his honorable discharge in May 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA), which denied increased disability ratings for the Veteran's service-connected bilateral knee and tinea versicolor disabilities. In a February 2017 decision, the Board added a claim of entitlement to a total disability rating based on individual unemployability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). Following multiple remands to the VA Regional Office for additional development, which has been accomplished, the case now returns to the Board for adjudication. All other claims for increased ratings that were previously associated with this appeal have been resolved and are no longer before the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, ___ F.4th ___, 2021 U.S. App. LEXIS 37307, at *11; 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. TDIU For a veteran who does not qualify for a schedular 100 percent disability rating, according to 38 C.F.R. § 4.16(a), a veteran is entitled to TDIU benefits if the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities, and: 1. The veteran has one service-connected disability rated at 60 percent or more; or 2. The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful employment. VAOPGCPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(a). "Substantially gainful employment" includes two components: a noneconomic component and economic component. The noneconomic component considers whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When determining whether a veteran can "secure and follow substantially gainful employment," the Board, as appropriate, should consider: 1. The veteran's history, education, skill, and training; 2. Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3. Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. (citations omitted). The Board is precluded from considering the Veteran's age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). "[A] veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his [or her] particular case." Ortiz-Valles, 28 Vet. App. at 71 (emphasis added). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). "Protected environment" is not defined by statutes or VA regulations, but the Board finds that it generally means a work environment in which the employer makes special and significant accommodations beyond those reasonably required by law and that are reasonably necessary to accommodate the veteran. In this respect, the Board is mindful of the Americans with Disabilities Act (ADA), especially its mandate that employers provide reasonable accommodations for individuals with disabilities such as "job restructuring, part-time or modified work schedules, . . . [and] acquisition or modification of equipment or devices." 42 U.S.C. § 12111(9)(B). Where a veteran's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the veteran to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer. In short, the economic component simply means 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, and that the noneconomic component requires the Board to fully explain why it concluded a veteran was capable of such employment. Ray, 31 Vet. App. at 73. The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Id. at 72, 7576. Analysis Schedular criteria The Veteran filed a claim for an increased disability rating on February 26, 2008, the Board is required to analyze whether he is entitled to TDIU benefits beginning one year preceding the filing of his claim. 38 C.F.R. § 3.400(o). As of February 26, 2007, the Veteran has been service connected for the following disabilities with their respective ratings and effective dates: Disability Rating Effective date Internal hemorrhoids 0% 5/13/2000 Right knee disability 10% 5/13/2000 Left knee disability 10% 5/13/2000 Tinea Versicolor 10% 5/13/2000 Duodenitis with gastroesophageal reflux disease (GERD) 10% 8/5/2004 Unspecified anxiety disorder 30% 11/21/2008 Lumbar degenerative disc disease 40% 20% 11/21/2008 9/21/2017 Left foot heel spur 10% 11/21/2008 Right foot heel spur 10% 11/21/2008 Left ulnar nerve entrapment 10% 11/21/2008 Tinnitus 10% 1/28/2013 Residual scars (stomach) 0% 1/28/2013 Right lower extremity lumbar radiculopathy 10% 9/21/2017 When determining whether a veteran has one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system, such as orthopedic, are considered "one disability." 38 C.F.R. § 4.16(a). Here, the Veteran's combined disability rating as of February 26, 2007, was 40 percent. Therefore, he did not meet the schedular requirements for TDIU benefits. As of November 21, 2008, the Veteran's combined disability rating was 80 percent, and he had one disability rated at 40 percent disabling (his lumbar degenerative disc disease). Even though his lumbar degenerative disc disease was reduced to 20 percent as of September 21, 2017, he continued to meet the schedular criteria because his orthopedic disabilities totaled 50 percent, constituting "one disability" for TDIU rating purposes under 38 C.F.R. § 4.16(a). Accordingly, as of November 21, 2008, the Veteran met the schedular criteria for TDIU benefits, and he continued to meet the requirements thereafter. Id. Substantially gainful employment Non-economic component Applicable to the entire period on appeal is the evidence related to the Veteran's history, education, skills, and training. In his application for Social Security disability benefits, he reported completing high school. He then obtained additional skills and training in the field of aviation mechanics. He worked in the mechanics field from 1994 to February 2007 according to his Social Security disability benefits application. It was at that time that he reported his disabilities prevented him from working any further. In his VA claims file are academic transcripts from a non-American college around 1994. His transcripts indicate he took a variety of college-level course, including English, history, liberal arts studies, and science. He earned more than 80 credits in his college education. In 2007, the Veteran applied for VA vocational and rehabilitation benefits. He described his then-current duties as a mechanic, which required him to repair forklifts and heavy equipment. He listed his educational history, which included obtaining 83 credits from a non-American university between 1990 and 1993 and receiving training in aviation maintenance technology in 1999. He submitted a formal application for TDIU benefits in August 2018. He indicated that the worked between May 2005 and April 2008 as mechanic during that timeframe. He also indicated completion of approximately three years of college. In a July 2021 application for TDIU benefits, the Veteran reported that he became too disabled to work in March 2008. Based on the foregoing evidence, the Board finds the Veteran's educational history demonstrates an aptitude to learn and develop. He has a relatively high amount of college credits. He has skills necessary to succeed in the labor market, to include knowledge of and experience with manual labor. He has also demonstrated his ability to apply his knowledge and skills in the labor industry by working for various employers. Overall, the Board finds the Veteran's history, education, skills, and training provides him a solid foundation for employment rather than being a hinderance to employment. The Board now turns to the physical and mental capabilities of the Veteran associated with his service-connected disabilities. The Board first acknowledges that the Veteran received Social Security disability benefits effective in 2009 based on his psychiatric and musculoskeletal disorders. The receipt of Social Security disability benefits, however, does not automatically entitle the Veteran to TDIU benefits because they are based on different laws. Nevertheless, such evidence is probative of the impact any service-connected disabilities, which the Social Security Administration considered, may have on the Veteran's ability to work. The Board finds that the Veteran's service-connected unspecified anxiety disorder has had an affect his mental capabilities. He received a VA examination addressing his psychiatric disorder in October 2017. During that examination, the Veteran reported fluctuating moods, feeling anxious, bouts of anger, and slight loss of interest in activities. The examiner documented that his psychomotor behavior was within normal limits. At that time, he did not display mental limitations based on his symptoms. The examiner did not document abnormal though processes, illogical speech, or other abnormal mental behavior. He maintained an active relationship with his girlfriend. The examiner opined that the Veteran's symptoms were not severe enough to affect his social or occupational functioning. Despite the examiner's opinion, the Board finds the examination, as well as Veteran's medical records and lay statements, provide evidence of mental limitations. For example, the Veteran's anxiety causes stress, which results in a reduced ability to complete mental tasks efficiently. Furthermore, his anxiety led to reduction in communication abilities with others. These limitations, however, were not severe. Rather, the Board finds that were of mild severity. Moreover, this conclusion is consistent with the medical evaluation the Veteran received in 2009 in association with his claim for Social Security disability benefits. Following a clinical analysis, a psychological professional opined that the Veteran's anxiety disorder was not severe. In fact, the psychological professional suggested the Veteran's anxiety was due, at least in part, to his cannabis use. In sum, the Board finds the Veteran did have mental limitations due to his service-connected anxiety disorder, but his mental limitations were mild in severity. The effect on the Veteran's ability to work was also minimal and did not prevent employability. As to physical limitations, the Board first finds that his service-connected scarring has had no effect on his occupational functioning at any point. There is a lack of evidence that the Veteran's scarring was painful or limited his functionality to any degree. Second, as to his service-connected hemorrhoids, there is credible and probative evidence in the record that his hemorrhoids caused him constant discomfort despite the noncompensable rating. Such discomfort was evident during a recent July 2020 VA-contracted examination. That examiner opined that the Veteran's hemorrhoids would likely limit his ability to lift heavy objects. In addition, the Board finds that due to the fluctuating pain and discomfort, there is a reasonably likelihood that it would also interfere with sitting for long periods of time. Third, the Board finds that the Veterans bilateral feet disabilities, to include tinea versicolor and heel spurs, did affect his ability to work to a slight degree. The Veteran's symptoms, individually, are mild and fluctuated, sometimes not being present at all. But when considered together, his service-connected feet disabilities, especially during flare-ups, required extended periods of rest. At times, the Veteran was unable to stand for long periods or walk long distances. Fourth, the Veteran's service-connected tinnitus had a minimal effect on his ability to work. At most, his tinnitus was bothersome and annoying, but is did not cause interference with communication or the ability to accomplish tasks. Fifth, the Veteran's service-connected duodenitis with GERD did have a minimal impact on his ability to work. Depending on the severity of acid reflux, the Veteran would have to take breaks to calm his stomach. A November 2012 VA examiner opined that the Veteran's GERD would flare-up in high stress situations, thus it was preferrable for the Veteran to work in low-stress positions. Sixth, the Veteran's left ulnar nerve entrapment did affect his ability to work. Notably, a November 2012 examiner opined that the Veteran should avoid jobs that required a moderate amount of heavy lifting or repetitive lifting, or an extensive use of hand tools. An August 2020 examiner opined that his left ulnar nerve entrapment would likely impact his ability to carry and grasp objects. Seventh, and most significant, the Board finds that when his service-connected bilateral knee, lumbar degenerative joint disease, and right lower lumbar radiculopathy are analyzed together, they severely limit his ability to work. The Veteran's medical records and VA-obtained examinations show that he has had constant pain and functional limitation associated with each of these disabilities throughout the relevant period. Due to his ambulatory and weightbearing restrictions, he is limited in his daily activities and overall physical mobility. He has received continuous treatment for these musculoskeletal disabilities, but there has been no longterm improvement of his pain. VA obtained multiple medical opinions addressing the functional impact of these disabilities on the Veteran's ability to work. A June 2009 VA examiner opined that the Veteran's bilateral knee disabilities affected his ability to complete tasks, to include complete prevention of shopping, exercise, and sports; a severe impact on traveling, bathing, dressing, toileting, grooming, driving; and a moderate effect on chores, and recreation. A January 2013 examiner opined that the Veteran's bilateral knee disabilities limited his ability to squat, kneel, climb, extend, and walk. He began using knee braces to assist him. A September 2017 examiner opined that the Veteran's lumbar disabilities limited him from stooping and lifting, and that his bilateral knee disabilities limited him from squatting, bending, and running. Most recently, and significantly, a July 2020 VA-contracted examiner opined that the Veteran's bilateral knee disabilities and radiculopathy limited him to sedentary work, noting that these disabilities would likely affect his ability to perform heavy lifting, repetitive squatting, prolonged walking, sitting, or standing. As to his lumbar disability, the examiner opined that the Veteran was unable to perform sedentary work. The examiner stated that the Veteran's pain and lumbar disc degeneration with spondylolysis would likely impair his ability to sit for prolonged periods and walk for short periods of time. In addition, he would be prevented from performing forward bending, heavy lifting, repetitive and prolonged overhead lifting/reaching, repetitive squatting, and prolonged standing. There is no definition of "sedentary employment" universally applicable to VA disability cases. Thus, in each case, the Board must use its reasoned judgment to define the term. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (VA does not define "sedentary employment" in its regulations for TDIU benefits; thus, the Board must determine the meaning on a case-by-case basis). The Board finds guidance offered by the Department of Labor useful. The Department of Labor states that sedentary work involves: Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. Department of Labor, Dictionary of Occupational Titles, Appendix C.IV.c, available at http://www.occupationalinfo.org/appendxc_1.html#STRENGTH (last visited Jan. 12, 2022). In October 2020, a separate examiner opined that the Veteran's bilateral knee disabilities prevented him from performing any employment activities efficiently because if he stands or walks for long periods, the pain becomes unbearable, and he would have to take longer and more frequent breaks for the pain to subside. As to his lumbar disability, the examiner opined that he cannot seat or stand longer than 45 minutes. He cannot lift any weight, and the pain causes loss of sleep that makes it difficult to perform any occupational activity. Overall, the Veteran's medical records and lay statements for the relevant appeal period are consistent with the VA and VA-contracted examinations. That is, his service-connected disabilities do limit his functional abilities. In fact, the Board finds his service-disabilities gradually worsened since 2008, when viewed as a whole. The Board finds that the most significant evidence is the medical opinions obtained by VA as well as the Social Security Administration documents, to include medical records, treatment, examinations, and opinions. The Veteran's statement that he quit working around 2008, based on his service-connected disabilities, is supported by the evidence of record. The Board finds that based on all relevant evidence, his service-connected disabilities rendered him unemployable. During the relevant period, his service-connected disabilities made it difficult, if not impossible, to sit, stand, walk, lift, reach, and climb for any reasonable period of time. When his musculoskeletal disabilities are viewed in light of his mental disability, the Board finds his ability to engage in many work-related activities, such as clerical work, manual labor, and service-related positions, is too speculative to constitute an ability to secure and maintain substantially gainful employment. An employer would need to make more than reasonable accommodations under the ADA to accompany the Veteran's wide array of symptoms and needs. Resolving reasonable doubt in the Veteran's favor, the Board finds that, despite his skills, training, education, and experience, his service-connected disabilities render him unemployable. Accordingly, the non-economic factor weighs in favor of granting TDIU benefits. Economic component The poverty threshold for one person, under the age of 65 in 2020 was $13,456.00, and over the age of 65 in 2020 was $12,413, the most recently revised thresholds. See United States Census Bureau, Poverty Thresholds, 2020, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Jan. 12, 2022). The evidence of record indicates that the Veteran has not been employed full-time (or part-time) since 2008, and his income since that time has not been above the poverty threshold at any point. Therefore, his income is less than the applicable poverty thresholds for the period on appeal. Accordingly, the economic component weighs in favor of awarding TDIU benefits. (Continued on the next page) Conclusion In sum, from November 21, 2008, the Veteran's service-connected disabilities met the schedular threshold, they prevented him from securing and maintaining a substantially gainful occupation, and he has not earned more than the poverty threshold throughout the entire relevant period. Therefore, entitlement to TDIU benefits is warranted. Matthew Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.