Citation Nr: 25007745 Decision Date: 06/10/25 Archive Date: 06/10/25 DOCKET NO. 91-50 821 DATE: June 10, 2025 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) from November 28, 1988, to September 22, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. From November 28, 1988, to September 22, 2011, the Veteran's service-connected disabilities, exclusive of his quadriparesis, loss of use of both feet, rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 2. As of September 22, 2011, the Veteran is in receipt of special monthly compensation based on a single disability rated at 100 percent and additional disabilities of 50 percent or greater, which renders the issue of entitlement to a TDIU during this period moot. CONCLUSION OF LAW From November 28, 1988, to September 22, 2011, the criteria for a TDIU 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 FINDINGS AND CONCLUSION The Veteran served on active duty from June 1972 to May 1979, with additional service in the Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 1990 by a Department of Veterans Affairs (VA) Regional Office. This case has a lengthy procedural history; the Board last remanded the issue on appeal in February 2024, and it now returns for further appellate review. Entitlement to a TDIU prior to September 22, 2011. On his VA Form 21-8940 received in April 2017, the Veteran reported that his quadriplegia/head injury had prevented him from working since May 1987. He reported that he last worked full time in March 1987. 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). 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 United States Court of Appeals for Veterans Claims (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. In a rating decision issued in April 2024, the Agency of Original Jurisdiction, in relevant part, awarded service connection for quadriparesis, loss of use of both feet, with a 100 percent rating, effective November 28, 1988. Thus, the Veteran is in receipt of a 100 percent rating overall as of November 28, 1988. However, the Court has held that the award of a 100 percent disability rating does not necessarily render a claim of entitlement to a TDIU moot. Specifically, the Court has noted that VA has a "well-established" duty to maximize a claimant's benefits. In this regard, the April 2024 rating decision also awarded special monthly compensation based on a single disability rated at 100 percent and additional disabilities of 50 percent or greater, effective September 22, 2011. Thus, the issue of a TDIU as of September 22, 2011, is moot. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley at 294 (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). Therefore, the issue of entitlement to a TDIU based on a disability other than the Veteran's quadriparesis, loss of use of both feet, is still a viable avenue of meeting the requirements for SMC during the remaining period prior to September 22, 2011. Consequently, the Board herein will address only the issue of entitlement to a TDIU for this period. From November 28, 1988, to September 22, 2011, the Veteran is in receipt of service connection for the following disabilities: quadriparesis, loss of use of both feet, evaluated as 100 percent disabling; hearing loss, evaluated as noncompensably disabling; whiplash injury, cervical spine, with subluxation of C3-5 (hereinafter, cervical spine disability), evaluated as 10 percent disabling prior to September 26, 2003, and 20 percent disabling thereafter; back disorder, to include spinal fractures and herniated discs (hereinafter, back disability), evaluated as 10 percent disabling; quadriparesis, bilateral arms, evaluated as noncompensably disabling; and effective September 22, 1994, sinus condition and status post tonsillectomy, both rated as noncompensably disabling. Based on these ratings, the Veteran has a combined overall rating of 100 percent for this period and meets the schedular threshold for consideration of a TDIU. On his April 2017 VA Form 21-8940, the Veteran reported three years of college, and for his work history, the Veteran did not list any employers for the last five years. Still, other evidence of record indicates the Veteran's previous occupations included insurance agent and paralegal chief. As noted above, he reported that he last worked full time in March 1987. He also reported that he had not sought employment since he became too disabled to work and that the most he earned in one year was on active duty with the Marine Corps in 1986. Per a January 1989 summary report of examination for organic hearing loss, the Veteran's right ear had mild to moderate sensorineural hearing impairment that became progressively worse in the higher frequencies, whereas his left ear had moderate, mixed impairment that became progressively poorer in the higher frequencies. Speech recognition was excellent in the right ear and only mildly impaired in the left ear. The Veteran reported difficulty hearing in "competing noise listening situations". He also had intermittent ear pathology related to sinus problems. A February 1989 medical record indicates the Veteran had a history of a back injury and partial paralysis, with continued pain and progressive loss of strength. He had been fitted with a neck brace and polypropylene body jacket, and he used a wheelchair for all mobility. Range of motion testing revealed full range of motion passively with both upper extremities. He appeared to have a mild to moderate scoliosis of the thoracic and lumbar spine with convexity on the right, and he was able to transfer independently from the wheelchair to the mat, roll, slide sideways, and sit to supine. Upper extremity muscle strength was greater than fair in all the major muscle groups, and while the Veteran did not lift his arms through the full range of motion, he was able to apply some resistance. His grip was weak, and his left upper extremity was weaker throughout compared to the right upper extremity. A July 1989 private consultation sheet shows the Veteran had considerable pain and poor effort. In pertinent part, there was evidence of atrophy in the left hand, bilateral weakness, and hyper reflexes. An October 1989 letter from a private physician, L.S., indicates the Veteran reported some sensation of weakness in both arms, with more involvement on the left, as well as some numbness involving digits 4 and 5 bilaterally. His current medication was Flexeril for spasms. At the time of the examination, the Veteran was wearing a rigid cervical collar; active abduction was greater than 90 degrees on the right upper extremity and maintained to 60 degrees on the left upper extremity. There was weakness with any attempt at resisted abduction, and weakness was elicited for the bilateral elbow flexors and extensors. Intrinsic hand weakness appeared present, although reflexes were symmetrically present at the biceps and triceps. L.S. recommended a program of occupational therapy for the upper extremities, with a focus on strengthening the shoulder abductors, forward flexors, and hand intrinsic strengthening. Notably, L.S. reported that occupational tasks fell in a sedentary level and noted the Veteran expressed some interest in computer-based activities. As a result, the aforementioned occupational therapy focuses would be useful so that the Veteran would not rapidly fatigue with arm positioning. In a December 1989 Certification of Borrower's Total & Permanent Disability, a private physician reported that the Veteran became unable to work and earn money in October 1986. The private physician identified diagnoses of multiple sclerosis, residuals of old spinal fractures, paralysis of lower extremities, and weakness of upper extremities. The report indicates the Veteran was confined to his house and was a wheelchair patient, with a prognosis that rehabilitation may strengthen his upper extremities so that he could pursue some type of work. The private physician specifically certified that the Veteran was temporarily totally disabled as a result of illness or injury and was unable to attend school or to be gainfully employed. Notably, the Veteran's ability to recover from his disability would be governed by any rehabilitation progress. A January 1990 private treatment record indicates the Veteran had a sinus and lung infection for about a month and a half. In a February 1990 letter, a private physician reported that the Veteran presented with a major complaint of weakness in the legs and arms, as well as altered sensation in the arms and below the mid-chest level. He specifically reported weakness of all extremities and a sensation of numbness of the left arm and right hand. Physical examination revealed tenderness to palpation over the spine that was diffuse and strength of the upper extremities that was greater than anti-gravity. The Veteran reported patchy decreased sensation in the right upper extremity and predominantly decreased sensation in the left upper extremity. The biceps, triceps, quadriceps, and Achilles reflexes were all abnormally increased. A March 1990 psychological evaluation indicates the Veteran was referred for vocational rehabilitation. It was noted that his work history included experience helping his father in carpentry and some computer operations while in the Marine Corps. His school history was reported positively from public school through military-related training in law enforcement to his current endeavor with a correspondence school for paralegal education. He had fairly good use of both upper extremities and fine motor control. The Veteran was articulate, cooperative, and friendly, but he seemed to fatigue easily during some tasks towards the end of the testing. On mechanical tasks, the Veteran demonstrated strong powers of concentration, moderately fast speed of performance, and no fine motor difficulty. The results showed a wide range of interests, as well as a positive outlook on vocational activity, and the examiner found the Veteran had a high desire for a vocation through which he could find both success and the appreciation of society. His profile indicated a preference for practical, mechanical, or concrete object interaction, and jobs that involved action were preferred. The examiner concluded the Veteran's developmental profile of cognitive functioning, psychological adjustment, and vocation interest was consistent with his expressed vocational interest in computer science, which would maximum his strengths, minimize his weakness, and be propitious should his disability worsen to the need for an assistive communication device. An April 1990 letter from a private physician indicates the Veteran reported considerable difficulties hearing and understanding those around him, which became pronounced when he was in the presence of background noise. Pure tone testing revealed a mild to moderate sensorineural hearing loss bilaterally, while speech discrimination ability showed good understanding in each ear. Amplification was recommended. A July 1990 medical record shows the Veteran had mild motor weakness in the upper extremities and no sensation below the neck. The examiner thought he may have been exaggerating his deficits. In March 1991, an Administrative Law Judge (ALJ) from the Social Security Administration (SSA) determined that the Veteran had a severe spinal lesion with disorganization of motor function of his lower extremities, the severity of which precluded him from working for at least 12 continuous months. The ALJ also found the Veteran had not engaged in substantial, gainful activity since May 2, 1987, and that he had been under a "disability" since May 2, 1987. In this regard, SSA determinations, while relevant, are not binding upon the Board. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Here, the Board takes note that SSA based the disability finding on the Veteran's quadriparesis of the lower extremities, which must be excluded from consideration herein. A November 1991 VA treatment record reflects a diagnosis of sinusitis and prescription of erythromycin, while a December 1991 private treatment record demonstrates diagnoses of sensorineural hearing loss and moderate to severe chronic pansinusitis/rhinitis. A May 1992 electromyography laboratory report revealed normal bilateral upper extremities except for a motor unit potential firing pattern noted in almost every muscle examined. In a July 1994 letter, the Veteran reported that he had moderate to severe pansinusitis/rhinitis. A July 1994 letter from a private physician, C. P., indicates the Veteran's strength in his right upper extremity was good proximally and fair plus distally, while his strength in the right upper extremity was good minus proximally and fair distally. There was no spasticity, but the Veteran had sensory impairment in various areas of both upper extremities. The physician found the Veteran's functional limitations were comprised of weakness of the upper extremities and limited endurance, with difficulty propelling a manual wheelchair for long distances or on graded areas. In a September 1994 letter, a separate private physician, T. K., reported that the Veteran suffered from constant pain and had severe - incomplete paralysis of the upper extremities. He medically needed a special mattress to pursue his current computer education, which could help to support him and his family. Per T. K., the Veteran was an intelligent individual who was only handicapped by his "numerous physical injuries and suffering". At a November 1994 VA examination, the Veteran continued to report difficulty hearing in most listening situations, which was most pronounced when he was around competing noise. Pure tone audiometry revealed mild to moderate sensorineural loss in the right ear and mild to severe sensorineural loss in the left ear. The VA examiner also noted the Veteran had some difficult with spoken voice. A December 1994 VA examination report noted a history of a deviated left septum with recurrent rhinitis and occasional sinus headaches. A December 1994 Mouth and Throat VA examination report shows the Veteran had occasional difficulty with swallowing solids. An April 2001 private history and physical examination report indicates the Veteran had been involved in vocational rehabilitation to work at a computer job; however, such had been complicated by blood pressure problems. The Veteran reported persistent dizziness related to his prior head trauma, as well as various aches and pains. His neck had decreased range of motion, but cranial nerves were intact. Motor strength was two out of five in the upper extremities, and sensation was diminished but appreciable for fine touch. Deep tendon reflexes were two to three plus in the right upper extremity and one to two plus in the left upper extremity. The impression, in pertinent part, included complete plegia from the trunk down and partial cord impairment in the upper extremity and head trauma with persistent dizziness. A February 2002 VA examination report shows the Veteran reported very minimal, if any, use of either his arms or legs due to weakness and numbness. He wore wrist braces and a cervical collar. He had cervical flexion to 20 degrees with zero degrees of extension and 10 to 15 degrees of rotation. There was no actual spine or paravertebral tenderness, and the Veteran was able to support his head in a neutral position without the cervical collar. He was able to pick his arms up and move them abduction about five degrees, with very minimal flexion or extension. A December 2003 letter from a private clinician indicates the Veteran had physical disabilities that limited him in his day-to-day activities. In addition to his quadriplegia, he had rotator cuff tears in both shoulders, hand ligament tears, knee and foot ligament tears, left hip pelvis and groin ligament tears, and instability of the left lower leg bones which put him at great risk for falls during transfer. The Veteran also required assistance with self-catheterizations because of his "limited fine motor skills". He also reported that he needed help with typing for his job and school work. The letter indicates the Veteran would greatly benefit from 24-hour care, seven days per week and that the duties would include bathing, dressing feeding, toileting, transfers, shopping, cleaning, home maintenance, and help with opening doors. Although dated outside the period at issue, the Board finds the September 22, 2011, VA examination reports contain relevant information. In pertinent part, such notes the Veteran had a history of weak arms, dysesthesias of the dorsal forearms and hands, intermittent paresthesias of the lateral hands bilaterally, the left web space area between the thumb and index finger, left head area, and bilateral posterior shoulder areas, and numbness in the dorsal arms and hands. The examiner reported that the Veteran's usual occupation was insurance agent and paralegal chief but that he was not currently employed and also was not retired. The duration of his unemployment was more than 20 years, and the examiner noted that the reason given for unemployment was spinal cord injury and quadriplegia. The examiner also reported that the Veteran had an attendant for 16 hours per day to assist with care on a daily basis. There is no evidence that the Veteran was employed in an occupation earning more than marginal income outside of a protected environment at any point during the period prior to September 22, 2011. Thus, the remaining inquiry is whether the Veteran had the physical and mental abilities to perform the type of activities required for an occupation consistent with his history, education, skills, and training. In this regard, the aforementioned evidence clearly indicates the Veteran's desire to pursue employment and various efforts, to include vocational rehabilitation, aimed at enabling him to obtain and maintain employment. Specifically, the record reflects his participation in a correspondence school for paralegal education and computer education, as well as requests for accommodations, such as a motorized wheelchair and special mattress, to support his educational and occupational endeavors. Nevertheless, the evidence does not show that the Veteran was able to actually pursue substantially gainful employment at any time during the period at issue. Here, the medical evidence is replete with findings noting weakness, numbness, and difficulty with fine motor skills in both upper extremities, which the Board finds would significantly limit the Veteran's ability to successfully complete tasks normally associated with non-manual labor jobs. Given his clear inability to pursue manual labor jobs due to his quadriparesis, loss of use of both feet, and the ultimate determinations as to his need for daily care by an attendant, the Board finds the evidence is at least in equipoise as to whether he had the physical abilities to perform the type of activities required for an occupation consistent with his history, education, skills, and training. Therefore, the Board resolves all doubt in favor of the Veteran and finds his service-connected disabilities, exclusive of his quadriparesis, loss of use of both feet, rendered him unable to secure or follow a substantially gainful occupation consistent with his level of education (some college) and history of work (paralegal chief and insurance agent). In sum, the criteria for a TDIU have been met prior to September 22, 2011, and the claim is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. Scott W. Dale Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, Supervisory Senior 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.