Citation Nr: 22016431 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-63 594 DATE: March 22, 2022 ORDER Entitlement to a total disability rating based on individual unemployment (TDIU) is granted. REMANDED A rating in excess of 20 percent for a low back disability, characterized as degenerative joint disease of the thoracolumbar spine, is remanded. An initial rating in excess of 10 percent for left lower extremity sciatic neuritis, prior to November 3, 2020, and in excess of 20 thereafter is remanded. FINDING OF FACT The Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from September 1954 to September 1958 and July 1959 to July 1978. These matters return to the Board of Veterans' Appeals (Board) following the issuance of an April 2020 Board remand which directed the Regional Office (RO) to undertake additional development. The Veteran testified at a January 2022 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. TDIU A Veteran will be entitled to TDIU upon establishing that they are in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from their service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities-provided 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). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See also Faust v. West, 13 Vet. App. 342, 356 (2000). Marginal employment (for purposes of 38 C.F.R. § 4.16) generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. 38 C.F.R. § 4.16 (a). Substantially gainful employment contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). Whether service-connected disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care providers. For a veteran to prevail on a claim for TDIU, the record must reflect circumstances that place the veteran's case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. 1. Entitlement to a total disability rating based on individual unemployment (TDIU) The Veteran contends that he is unable to work due to his service-connected disabilities. After a review of the evidence, the Board finds that entitlement to TDIU is warranted. On his claim for TDIU, the Veteran indicated that the last worked full time in July 1978 and that he officially stopped working in any capacity in 2012. On his application, the Veteran indicated that he has a high school diploma. The Board notes that the Veteran has not met the schedular requirements for TDIU during any point during the period on appeal. Specifically, the Veteran is service connected for: degenerative joint disease at 20 percent; left lower extremity sciatic neuritis at 20 percent; hypertension at 10 percent; prostate cancer residuals at 10 percent; and he receives noncompensable ratings for erectile dysfunction and residuals of a left thumb fracture. The ratings for these disabilities result in a combined rating of 40 percent prior to November 3, 2020, and 50 percent thereafter. The evidence shows that the Veteran has been unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. The Veteran's medical records indicate that his service-connected disabilities result in difficulties in walking, sitting for periods of time longer than 10 to 15 minutes, and standing for prolonged periods of time. Additionally, the Veteran must use a cane for stability, fall prevention, and ambulation. During the period on appeal, the Veteran was provided with relevant VA examinations in March 2015 and November 2020. The March 2015 examiner opined that the Veteran's low back disability affects his ability to work. Specifically, he would be unable to lift more than 20 to 25 pounds, would be limited to walking 25 yards in one instance, would be limited to walking .25 miles in a day, would not be able to sit for more than 60 minutes or stand for more than 10, and would be unable to alternate between sitting and standing for longer than a period of four hours. The November 2020 examiner also endorsed functional limitations due to the Veteran's low back disorder which would interfere with physical movement. Namely, that the Veteran would not be able to lift more than 10 pounds, would not be able to bend at the waist, would not be able to walk more than 20 yards, would not be able to stand for more than 5 minutes at a time, and would not be able to work in a position which would require sitting down for a majority of the time. The examiner sated that the Veteran would be best suited for ambulatory work but did not explain how the previously stated physical limitations would be accounted for in such a position, specifically, the limitations with sitting and standing. A private examination report was submitted by the Veteran in May 2017. The examiner specifically stated that the Veteran would be unable to perform gainful employment due to the symptoms and limitations stemming from his low back disability. Considering the noted severity of the symptoms of the Veteran's service-connected disabilities documented in his medical records and the pertinent medical examinations, the Board concludes that the Veteran is not able to engage in substantially gainful employment. Entitlement to TDIU is warranted and the Veteran's claim is granted. 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 REASONS FOR REMAND 1. A rating in excess of 20 percent for a low back disability, characterized as degenerative joint disease of the thoracolumbar spine, is remanded. 2. An initial rating in excess of 10 percent for left lower extremity sciatic neuritis, prior to November 3, 2020, and in excess of 20 thereafter is remanded. The Veteran is seeking higher ratings for a low back disability and left lower extremity neuritis. He asserts that the currently assigned disability ratings did not adequately contemplate the current severity of his disabilities. The Board concludes that these claims must be remanded. The Veteran was provided with a VA examination in November 2020 which did not endorse ankylosis of any type related to the Veteran's low back disability. However, the examination report also noted that previously the Veteran had been diagnosed with ankylosis. There was no discussion of conflicting evidence in the examination report. A new examination must be provided so that a diagnosis of ankylosis can be confirmed or set aside. As the Veteran's claim for a higher rating for his left lower extremity neuritis is inextricably intertwined with his claim for a higher rating for his low back disability, this claim must also be remanded. The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. Invite the Veteran to submit any evidence in support of his claims on appeal. 2. Schedule the Veteran for new VA examinations to determine the current severity of the Veteran's low back and left lower extremity neuritis disabilities. The claims folder must be made available to and be reviewed by any examiner(s). All tests deemed necessary should be conducted and the results reported in detail. The examiner should specifically discuss the Veteran's previously noted ankylosis and note any symptoms of such a diagnosis or limitations that could be analogous to ankylosis. The full range of motion testing must be performed in both active and passive motion, in weightbearing and non-weightbearing with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, they should clearly explain why that is so. The examiner should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups for each disability. The examiner should estimate any additional loss of motion to the best of their ability. If it is not possible to provide a specific measurement without speculation, the examiner should 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). All opinions should be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor