Citation Nr: 22018060 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-40 333 DATE: March 28, 2022 ORDER Entitlement to a total disability based on an individual unemployability (TDIU) is granted. FINDING OF FACT By resolving all reasonable doubt in the Veteran's favor, he is unable to maintain and/or secure substantially gainful employment as a result of his collective, service-connected right ankle, left ankle, and right shoulder disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1992 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision from the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office in Phoenix, Arizona. In November 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. TDIU A total disability rating may be warranted where the schedular rating is less than total, and a disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). The Veteran is service-connected for right ankle sprain, at 30 percent disabling; left ankle talo-fibular ligament tear, peroneal tendon tenosynovitis and posterior tibial tendonitis, post-surgical reconstruction, at 20 percent disabling; painful bilateral ankle scars, a 20 percent disabling prior to April 20, 2017, and at 30 percent disabling, beginning April 20, 2017; and right shoulder impingement syndrome with rotator cuff tendonitis, labral tear and sub-acromial and sub-deltoid bursitis associated with right ankle sprain, at 20 percent disabling. His combined disability rating for compensation purposes is 70 percent. While no one single service-connected disability ratable at 60 percent or more, and while none of the disabilities are rated as 40 percent disabling or greater, because they arise from a common etiology, the combined rating may be considered as one disability for purposes of meeting the criteria for consideration of TDIU. Notwithstanding the established, prerequisite criteria for a TDIU, however, the central inquiry is whether the Veteran's service-connected disabilities alone are of enough severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not sufficient. Particularly, a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. At the same time, however, the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, and not whether he or she can find employment. Hoose v. Brown, 4 Vet. App. 361 (1993). While consideration for a TDIU may be attributed to a veteran's level of education, special training, and previous work experience, consideration must not be given to the veteran's age or an impairment that is due to a nonservice-connected disability. See 38 C.F.R. §§ 3.341, 4.16, 4.19. There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. However, marginal employment will not be considered as substantially gainful employment. 38 C.F.R. § 4.16. In assessing the Veteran's employability, the United States Court of Appeals for Veterans claims ("Court") defines "substantially gainful employment" as encompassing both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means that a veteran must not receive income from employment that exceeds the poverty threshold for one person, as determined by the U.S. Department of Commerce. Id. The non-economic component requires consideration of a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to a service-connected disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any. Id. In considering the economic component criterion, the probative evidence shows that while the Veteran was working up to the time of his virtual hearing in November 2021, he stopped working full-time in July 2014, when he sustained his injuries from a fall. See November 2021 Virtual Hearing Transcript. Here, the Board finds that the Veteran's statements about his work history are competent and credible, as they are corroborated by his medical treatment records. See e.g. September 2014 Activity Report (noting that the Veteran underwent a large ankle reconstruction, and that he would be out of work, 100 percent and healing, for the following 9 -12 months after the September 2014 treatment note date); see also March 2015 Activity Report; see too, March 2016 Private Treatment Record (noting that the Veteran was working at the time, on light duty). Notwithstanding the extent to which the Veteran has been working, however, the Board has further considered whether he meets the poverty threshold for the economic component criterion (i.e. the requirement that his employment income cannot exceed the poverty threshold for one person), for a TDIU consideration. Particularly, in 2016, the poverty threshold for one person, as determined by the U.S. Department of Commerce, was $11,880. In 2017, however, the U.S. Department of Commerce increased the poverty threshold for one person to $12,060. In this regard, the Veteran submitted income tax statements which indicate that his adjusted gross income for 2016 was $168,223, and for 2017, his adjusted gross income was reported as $178,644. Although these amounts far exceed the poverty threshold for 2016 and 2017, the Veteran clarified that this substantial income for 2016 and 2017 is based on joint income from himself and his spouse (a certified registered nurse anesthetist). See November 2021 Virtual Hearing Transcript. Here, the Board is satisfied with the Veteran's explanation and finds that his testimony about his income is credible, as both 2016 and 2017 income tax statements confirm that the Veteran and his spouse filed a joint tax return in 2016 and 2017, selecting "married filing jointly" for filing status, and in which both 2016 and 2017 forms clarify that the filing status, "married filing jointly", is permissible "even if only one had income." Additionally, as noted above, medical treatment records confirm that the Veteran worked intermittently, and had not worked in a full-time capacity since 2014. Thus, by resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran meets the economic component criterion. With respect to the noneconomic component, factors to consider, as noted above, include the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 58. Accordingly, in considering the noneconomic component of whether the Veteran is entitled to a TDIU, the evidence shows that his work experience is limited to manual labor, including construction. See e.g. March 2017 Exertional Daily Activities Questionnaire Form, Social Security Administration (SSA) Records; see also April 2017 Form VA 21-4192: Employment Verification Form (Employment Verification Form) (reflecting self-reported statements from the Veteran, in his capacity as a self-employed owner and operator of his company, stating that he operated, installed, repaired and provided services for voice data, fiber optics cable, CCTV, fire alarm, and security alarm systems). Further, the evidence additionally shows that the highest level of education the Veteran completed is high school, and that he has additional, specialized training in welding, in which he possesses the highest, possible certification from the American Welding Society. See e.g. February 2017 Unsigned Form SSA-3368: Work History Report; see also November 2021 Virtual Hearing Transcript. Pertinently, the medical evidence suggests that the functional level of impairment caused by his service-connected bilateral ankle and right shoulder disabilities significantly impact his ability to undertake occupational tasks. For example, a May 2016 disability benefits questionnaire (DBQ or examination report notes that the Veteran is severely limited in walking and standing tolerance; he uses a cane to decrease the impact on his ankles, and thus, carrying capacity is diminished; and the impairment of his bilateral ankle disability results in constant swelling in the ankle following a day of work. See also Second, Distinct May 2016 DBQ from Dr. N.J. (describing the impact on the Veteran's bilateral ankle disability on the Veteran's ability to perform any type of occupational task as being unable to lift, stand, or walk greater than 10 minutes, and an inability to climb ladders). Further, a separate, May 2016 DBQ for shoulder conditions, indicates that the Veteran is unable to lift or reach overhead. There is further VA and private medical evidence documenting the impact of the service-connected disabilities. For example, a June 2017 VA examination report describes the impact of the Veteran's bilateral ankle disability as preventing prolonged walking, standing, climbing stairs, climbing ladders, heaving lifting or running. An October 2017 VA examination report for shoulder conditions similarly finds that the impact of the Veteran's right shoulder disability impacts his ability to perform any type of occupational task, specifically describing this functional impact as right hand arm weakness due to the use of a cane on the right hand (for his right ankle disability), and even with physical therapy, his biceps muscle has not returned; cold right hand at all times, with numbness when the right arm is raised at 90 degrees, thereby resulting in difficulty with picking up things, secondary to weakness and fatigue with the right arm, with pain occurring when arm is flexed at 90 degrees. Further, this VA examination report notes that even though the Veteran owns a contracting company, but works with his own schedule, he must take off work for several days, due to feet and shoulder, and that he cannot do this with construction. Moreover, the evidence shows that the Veteran has not accumulated work experience in any other areas, such as, for example, sedentary/office work or any area of employment that does not require labor intensive tasks, and or the active, demanding use of his impaired right shoulder and bilateral ankle. Thus, by resolving all reasonable doubt in his favor, the Veteran is unable to secure or maintain substantial gainful employment as a result of his collective service-connected disabilities. The criteria for TDIU are met. The appeal is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt, 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.