Citation Nr: 22017008 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-32 559 DATE: March 23, 2022 ORDER Effective July 17, 2014, entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 17, 2014, due to service-connected disabilities is denied. FINDINGS OF FACT 1. The evidence of record is at least in approximate equipoise as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result his service-connected disabilities, effective July 17, 2014. 2. Prior to July 17, 2014, the evidence of record persuasively favors a finding that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a TDIU are met, effective July 17, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for a TDIU prior to July 17, 2014, are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to August 1994. TDIU Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran's formal claim for a TDIU was received on July 16, 2014, and the question before the Board is whether the Veteran is entitled to a TDIU from July 16, 2014, to the present. As will be explained below, the Board finds that entitlement to a TDIU is warranted for the period from July 17, 2014. Effective July 16, 2014, the Veteran was awarded service connection for the following disabilities: posttraumatic stress disorder (PTSD), rated as 30 percent disabling; left ankle, status post fracture, rated as noncompensable; right great toe, status post fracture, rated as noncompensable; deviated septum, rated as noncompensable; and scar, left index finger, rated as noncompensable. His overall combined disability rating was 30 percent. Thus, the TDIU criteria are not met as of July 16, 2014. Effective July 17, 2014, the Veteran was awarded service connection for the following disabilities: PTSD, rated as 30 percent disabling; neuropathy, left upper extremity, rated as 20 percent disabling; neuropathy, right upper extremity, rated as 20 percent disabling; neuropathy with radiculopathy, right lower extremity, rated as 10 percent disabling; neuropathy with radiculopathy, left lower extremity, rated as 10 percent disabling; back strain, rated as 10 percent disabling; Bell's palsy, rated as 10 percent disabling; left ankle, status post fracture, rated as noncompensable; right great toe, status post fracture, rated as noncompensable; deviated septum, rated as noncompensable; scar, left index finger, rated as noncompensable; and sinusitis, rated as noncompensable. His overall combined disability rating was 70 percent when considering the bilateral factor. See 38 C.F.R. § 4.26 (2021). Effective December 21, 2021, the Veteran was awarded service connection for the following disabilities: PTSD, rated as 30 percent disabling; neuropathy, left upper extremity, rated as 20 percent disabling; neuropathy, right upper extremity, rated as 20 percent disabling; neuropathy with radiculopathy, right lower extremity, rated as 20 percent disabling; neuropathy with radiculopathy, left lower extremity, rated as 20 percent disabling; femoral neuropathy and radiculopathy, left lower extremity, rated as 20 percent disabling; femoral neuropathy and radiculopathy, right lower extremity, rated as 20 percent disabling; back strain, rated as 10 percent disabling; Bell's palsy, rated as 10 percent disabling; left ankle, status post fracture, rated as noncompensable; right great toe, status post fracture, rated as noncompensable; deviated septum, rated as noncompensable; scar, left index finger, rated as noncompensable; and sinusitis, rated as noncompensable. His combined disability rating was 90 percent when considering the bilateral factor. See 38 C.F.R. § 4.26. Because the neuropathies of the bilateral upper extremities affect both upper extremities, the 20 percent ratings assigned to each disability may be combined and considered a single disability for the purpose of establishing the schedular criteria under 38 C.F.R. § 4.16. Thus, the TDIU criteria are met as of July 17, 2014, and the remaining inquiry is whether he was unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. In reaching such a determination, 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 the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). An August 2018 decision by the Social Security Administration (SSA) determined that the Veteran was disabled as a result of his lumbar spine disability, hypertension, obesity, and diabetes, and that his disability began in April 2016, the month in which he turned 55. Although SSA disability determinations are relevant and to be considered, they are not binding on VA. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). In his July 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked for a grocery store in May 2014, and that he had to stop working as a result of his service-connected mental health problems. The Veteran noted that he was a loader, and that his education included four years of high school. An August 2014 VA treatment record noted that the Veteran last worked as a loader and lift operator in a warehouse, but that he had been out of work since April due to a back injury. A March 2015 VA examiner concluded that the Veteran's mental health symptomatology resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform tasks only during periods of significant stress; or symptoms controlled by medication. The examiner also noted the Veteran's report that he was unemployed due to a work-related injury, not because of his mental health symptoms. The examiner noted that his report that he was receiving workman's compensation due to a back injury. His symptoms included depressed mood. The Veteran also underwent VA examinations in March 2015 that addressed his non-mental health related disabilities. With regard to each disability, the examiner noted that they did not result in any functional impairment. With regard to his left ankle disability and right foot disability, the examiner noted that he denied flare-ups and functional loss, and there was no functional loss upon examination. With regard to his back strain, the examiner noted that he denied flare-ups and any functional loss, there was no functional loss upon examination, and there was no objective evidence of a chronic back disability. Finally, there was no functional impairment associated with his service-connected scar and/or Bell's palsy. The August 2018 SSA decision noted that the Veteran's left ankle disability and Bell's palsy were found to cause no more than minimal limitations on his ability to perform basic work activities. Likewise, the SSA noted that the Veteran's mental health symptoms resulted in no more than minimal limitation in his ability to perform basic mental work activities. A February 2020 VA examination report noted that the functional limitations associated with the Veteran's lumbar spine included walking no more than ten minutes; standing in one position for no more than two minutes; sitting in one position for no more than two minutes; bending backwards or to the right side; twisting to the right or left; pushing; pulling; walking up and down stairs; and lifting more than thirty to forty pounds. A February 2020 VA examination report noted that the functional limitations associated with the Veteran's bilateral upper extremities and bilateral lower extremities included walking no more than five minutes; difficulty holding objects, and difficulties using tools with his hands. A February 2020 VA examiner concluded that the Veteran's mental health symptomatology resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform tasks only during periods of significant stress; or symptoms controlled by medication. The examiner also noted the Veteran's report that he stopped working in 2014 due to his back. His symptoms included depressed mood, anxiety, and chronic sleep impairment. A December 2020 VA examination report noted the Veteran's report of lower back pain that radiated down both legs to his feet, as well as flare-ups. The examiner also noted that the Veteran's service-connected back strain resulted in difficulty running; difficulty walking, standing, and sitting for long periods of time; difficulty climbing ladders and stair; difficulty sleeping; and difficulty bending, lifting, and carrying. These difficulties, in turn, caused the Veteran issues with completing physical tasks at work. A December 2020 VA examination report noted that the Veteran's service-connected bilateral upper extremity disabilities caused him difficulties with gripping and grasping his hands which, in turn, caused limitations with both physical and administrative work. An August 2021 VA examiner concluded that the Veteran's mental health symptomatology resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform tasks only during periods of significant stress; or symptoms controlled by medication. The examiner also noted the Veteran's report that he was unemployed due to a work-related injury when a stack of pallets fell on him. Prior to this, he worked as a warehouse manager. His symptoms included depressed mood, anxiety, chronic sleep impairment, and difficulty adapting to stressful circumstances, including work or a work-like setting. A December 2021 VA examiner concluded that the Veteran's mental health problems caused a mild or intermittent decrease in work efficiency or ability to perform occupational tasks, and that the Veteran would work best in low stress environments that demanded minimal changes to daily task routine. He would perform best in an environment that allowed him to work with minimal other coworkers and reduced interaction. Based on the evidence of record, the evidence is at least in relative equipoise as to whether the functional impairment associated with his service-connected back strain, bilateral upper extremity disabilities, and bilateral lower extremity disabilities rendered him unable to secure and maintain gainful employment at any point since the effective date of the award of service connection for those disabilities, such that entitlement to a TDIU is warranted from July 17, 2014. Significantly, weighing in favor of the Veteran's claim are the February 2020 and December 2020 VA examination reports and the functional limitations described that were associated with his service-connected back strain and bilateral upper extremities and bilateral lower extremities. As noted above, the February 2020 examiner noted that he could walk no more than ten minutes; stand in one position for no more than two minutes; sit in one position for no more than two minutes; bend backwards or to the right side; twist to the right or left; push; pull; walk up and down stairs; and lift more than thirty to forty pounds. The examiner also noted that he had difficulty holding objects, and difficulties using tools with his hands. The December 2020 VA examination report noted the Veteran's service-connected back strain resulted in difficulty running; difficulty walking, standing, and sitting for long periods of time; difficulty climbing ladders and stair; difficulty sleeping; and difficulty bending, lifting, and carrying. These difficulties, in turn, caused him issues with completing physical tasks at work. Similarly, the examiner noted that his service-connected bilateral upper extremity disabilities caused him difficulties with gripping and grasping his hands which, in turn, caused limitations with both physical and administrative work. The Board notes that the March 2015 VA examiner did not find any functional impairment associated with the Veteran's disabilities; however, the Board notes that he has been consistent in his description of the functional impairment associated with his service-connected back strain, bilateral upper extremities, and bilateral lower extremities. Insofar as the SSA decision determined that the Veteran could have performed sedentary work prior to April 2016, given his employment and educational history, the Board finds that it is unlikely that he would be able to obtain and sustain gainful sedentary employment. Additionally, the February 2020 and December 2020 VA examiners indicated that the Veteran would likely be unable to sit for prolonged periods due to his service-connected back strain, bilateral upper extremities, and bilateral lower extremities. However, based on the evidence discussed above, the evidence of record persuasively favors a finding that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation prior to July 17, 2014; thus, entitlement to a TDIU is not warranted prior to that point. Significantly, the Veteran's service-connected disabilities included his PTSD; his left ankle, status post fracture; his right great toe, status post fracture; his deviated septum; and his scar, left index finger. Despite the Veteran's formal claim for a TDIU in July 2014 wherein he claimed he was unemployable due to his PTSD, the August 2014 VA treatment record noted his report that he last worked as a loader and lift operator in a warehouse, but that he had been out of work since April due to a back injury. The March 2015 VA examiner noted that there were no functional impairments associated with the Veteran's left ankle disability, right foot disability, deviated septum, and scar. The August 2018 SSA decision also noted that the Veteran's left ankle disability and Bell's palsy were found to cause no more than minimal limitations on his ability to perform basic work activities. As for his mental health symptoms, the March 2015 VA examiner concluded that the Veteran's mental health symptomatology resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform tasks only during periods of significant stress; or symptoms controlled by medication. The examiner also noted the Veteran's report that he was unemployed due to a work-related injury, not because of his mental health symptoms. Similar findings were noted in the subsequent VA examinations addressing the Veteran's mental health symptomatology, and the August 2018 SSA decision noted that the Veteran's mental health symptoms resulted in no more than minimal limitation in his ability to perform basic mental work activities. In conclusion, the Board finds that entitlement to a TDIU is granted, effective July 17, 2014, the day he met the schedular criteria for a TDIU. However, the evidence of record persuasively favors a finding that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation prior to July 17, 2014. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.