Citation Nr: 23020719 Decision Date: 04/04/23 Archive Date: 04/04/23 DOCKET NO. 12-31 575 DATE: April 4, 2023 ORDER A total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In March 2018, the Board remanded the matter as it was inextricably intertwined with another matter which required development before the Board. In January 2021, the Board denied the Veteran's entitlement to a TDIU. The Veteran appealed such decision to the Court of Appeals for Veterans Claims (CAVC) which resulted in a Joint Motion for Remand in September 2021. In May 2022, pursuant to such motion, the Board remanded the matter for referral to the Director of Compensation Service to consider the entitlement to an extraschedular TDIU rating during the appeal period. The matter now returns to the Board for further appellate review. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. During the pendency of the appeal, the Veteran has been service-connected for post-phlebitic syndrome to right lower extremity, rated 30 percent disabling from December 1, 1970, and 40 percent disabling from September 28, 2016; tinnitus, rated 10 percent disabling from April 16, 2010; bilateral hearing loss, rated noncompensably from April 16, 2010; and scar, right lower extremity associated with post-phlebitic syndrome to right lower extremity, rated noncompensably from March 21, 2018. Consequently, the Veteran does not meet the schedular threshold for a TDIU. 38 C.F.R. § 4.16(a). Further, in an October 2022 opinion, the Director of Compensation Service found that a TDIU on an extraschedular basis was not warranted. Nevertheless, resolving all doubt in the Veteran's favor, the Board finds the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected conditions. In accordance with the CAVC's September 2021 JMR, the Board has paid particular attention to the Veteran's VA examinations and the functional limitations indicated within such. On his April 2010 Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran reported that he last worked full-time August 24, 2009, and that he became too disabled to work on that same day. The Veteran reported that he began his job as a railroad engineer in July 1988. He indicated that he left such job due to his service-connected post-phlebitic syndrome to right lower extremity. The Veteran completed high school. While employed, he completed some engineer training. The Veteran has not had any additional education or training since. In August 2009, the USA Railroad Retirement Board found the Veteran to be occupationally disabled due to pain in his right leg. Turning to the medical evidence, upon VA examination for his post-phlebitic syndrome in August 2010, the Veteran reported constant throbbing, weakness with ambulation, stiffness, swelling with ambulation, occasional heat and redness, lack of endurance, and fatiguability. The examiner noted the Veteran's functional limitation of being unable to stand or walk for a prolonged time and that the Veteran requires rest and elevation to alleviate such symptoms. The Veteran reported missing 40 days of work in one year for such disability and that he took disability retirement from his employment due to this condition. Ultimately, the examiner provided that the Veteran can be employed in a sedentary position with the conditions that there is no prolonged standing, no prolonged walking, and no prolonged sitting without the ability to elevate his right leg. The examiner explained that such requirements are necessary as the Veteran's right leg edema, a symptom of such condition, is significantly decreased when seated with legs elevated. Upon VA examination for the Veteran's bilateral hearing loss and tinnitus in November 2010, the Veteran's Maryland CNC speech recognition scores were 96 percent and 68 percent, for his right and left ears, respectively. A score below 70 percent is indicated to be "poor" by VA. The VA examiner opined that the Veteran may have difficulty in a work environment in which auditory communication is critical. In September 2016, the Veteran underwent a VA examination for his post-phlebitic syndrome. The Veteran's post-phlebitic syndrome symptomatology includes a chronic ache and limitations on the Veteran's ability to sit, stand, or walk for a prolonged time. The Veteran's edema is chronic and increases when standing; the edema is improved, but not fully resolved, with elevation. The VA examiner indicated the Veteran cannot do arduous work, lift, run, carry, climb, push, pull, bend, twist, kneel, or squat. The examiner opined that the Veteran is able to do sedentary work, subject to the listed limitations. However, even in sedentary work, the examiner opined that the Veteran must be able to change positions after being seated for 20 to 30 minutes. Upon VA examination in March 2018 for his post-phlebitic syndrome, the Veteran reported he is unable to stand more than 5 minutes, his right leg pain had increased by 30 percent, and he has daily flares of sharp pain. The VA examiner noted the Veteran's condition impacts his ability to work as he has a decreased capacity to stand and walk. In a 2011 VA treatment record, the Veteran reported his chronic leg ache becomes painful with sitting more than 30 minutes, standing more than 20 minutes, and walking more than 1/8th of a mile. The Veteran reported needing 15 to 20 minutes to rest when such activities become painful, including after driving for 30 minutes. In a May 2022 letter, a private physician, P.C., opined that, based on a review of the Veteran's medical records, lay statements, and medical literature on the subject, the combination of the Veteran's service-connected bilateral hearing loss, tinnitus, and severe chronic venous insufficiency have prevented him from securing and maintaining gainful employment since he last worked in August 2009. Specifically, the physician stated that the Veteran's medical history shows he suffers from chronic pain and difficulty walking, sitting, and standing, due to the chronic venous insufficiency of his low leg. P.C. cited medical literature which reported that such condition impairs the ability to engage in multiple activities of daily living such as housekeeping, shopping, standing, walking, and job-related activities. Additionally, P.C. noted research which indicates that patients with hearing loss are at higher risk of being unemployed or underemployed than those with normal hearing. Ultimately, P.C. opined that given the Veteran's educational and vocational history, even if a workplace were to accommodate the limitations related to the Veteran's right leg, his hearing loss would preclude him from other positions (i.e., those which require hearing or face-to-face interactions). In a March 2009 private treatment record, the clinician noted the Veteran's attempts to alleviate the symptoms of his condition and provided that the Veteran's pain and swelling interfere with the patient's activities of daily living, such that he cannot function properly. In August 2009, the same clinician indicated that the Veteran would have to stop working as an engineer, as all measures to address the Veteran's pain have failed. In a January 2010 Disability Briefing document, provided by the USA Railroad Retirement Board, the private examiners found the Veteran to be disabled, noting that he would be able to perform less than the full range of sedentary work. The examiners noted the Veteran could occasionally lift and carry up to 20 pounds, frequently lift and carry up to 10 pounds. They further noted the Veteran can stand and walk for less than 2 hours and sit at least 6 hours in an 8-hour workday. The examiners further noted that the Veteran was to avoid pushing and pulling with his lower extremities, must avoid extreme heat, and only be exposed to moderate hazards. Additionally, it was also noted the Veteran would be unable to perform the full range of sedentary work. In a September 2010 written statement, the Veteran's wife reported the physical difficulties the Veteran experienced while working as well as his general limitations which included being unable to sit, stand, or walk for any length of time. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. Consequently, a TDIU is warranted. Based on the procedural history of this appeal, the Board finds that the AOJ will assign the effective date of this award as an appealable issue. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Younan 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.