Entitlement to total disability based on individual unemployability (TDIU) is granted from September 1, 2008, to May 20, 2015.

Citation Nr: 26001405 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 09-07 257 DATE: January 30, 2026 ORDER Entitlement to total disability based on individual unemployability (TDIU) is granted from September 1, 2008, to May 20, 2015. FINDING OF FACT The evidence is at least in approximate balance that the Veteran has been unable to secure and maintain substantially gainful employment from September 1, 2008. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for TDIU have been met from September 1, 2008, to May 20, 2015. 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to October 1990, and January 1991 to February 1991. His military occupational specialty (MOS) was unit supply specialist. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This claim has a lengthy procedural history. By way of background, an August 2013 Board decision, in pertinent part, denied entitlement to an increased rating for a left knee disability and a left thumb disability. In that decision, the Board found that TDIU had not been raised as part of the increased rating claims. In a March 2015 joint motion for partial remand (JMPR) issued by the Court of Appeals for Veterans Claims (CAVC), the parties found that the Board did not sufficiently address whether TDIU was raised given the potential impact of his bilateral knee disability on his employment. In a subsequent July 2015 Board decision, the Board found that TDIU had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and was properly before the Board. For the sake of brevity, the Veteran's TDIU claim has been remanded multiple times since the March 2015 JMPR as inextricably intertwined with the Veteran's underlying disability claims. Most recently, in August 2023, the Board remanded the TDIU claim to the RO, to be adjudicated after assigning effective dates and ratings for claims granted by the Board in that decision. In July 2024, the RO issued a supplemental statement of the case (SSOC) denying the claim for TDIU, and the claim returned to the Board for review. In September 2024, the Board denied the claim again. The Veteran appealed the September 2024 Board decision to the CAVC, resulting in an October 2025 Joint Motion for Partial Remand (JMPR). In the October 2025 JMPR, the parties agreed that the Board "failed to provide an adequate statement of reasons or bases explaining how [evidence the Veteran obtained advanced degrees] relates to whether the Appellant was capable of securing or following substantially gainful employment during the relevant appeal period." The JMPR further agreed that the Board should reconsider evidence that the Veteran reported leaving a desk job due to pain in his knees and left hip from prolonged sitting. Finally, the parties agreed that "Appellant does not challenge the Board's denial of entitlement to TDIU from May 21, 2015, and the parties respectfully request that the Court dismiss the appeal as to that issue." Entitlement to TDIU is granted from September 1, 2008, to May 20, 2015. The Veteran contends he has been unable to work due to his service-connected disabilities since September 2008. The Board resolves doubt in his favor and agrees. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Under 38 C.F.R. § 4.16(a)(2), disabilities resulting from common etiology or a single accident are considered a single disability for purposes of TDIU. An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Court has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). Regarding the use of the phrase "sedentary employment" or a similar description, VA adjudicators and examiners (medical expert witnesses) sometimes use the term "sedentary" work or employment in discussions of ability to secure and follow a substantially gainful occupation. The phrases "sedentary work" or "sedentary employment" are not included in the current statutes or regulations concerning VA benefits. Withers v. Wilkie, 30 Vet. App. 139, 142 (2018). In Withers, the Court of Appeals for Veterans Claims (Court) rejected "ordinary-meaning canon," and held that when a VA examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that a veteran is incapable of performing. Id. at 147-148. The ability to perform various forms of work can be a relevant consideration, but the Board must explain how an examiner's description of a veteran's specific functional limitations supports a conclusion that a veteran is able to secure or follow a substantially gainful occupation consistent with his education, training, and work history. Id. at 142. The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The term "protected environment" is not defined in the regulations governing TDIU. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The applicable VA regulations suggest that a "protected environment" includes "a family business or sheltered workshop." 38 C.F.R. § 4.16 (a). Additionally, factors such as the type and extent of accommodations received, the employer behavior or intent toward the veteran, and whether the veteran's income is significantly above the poverty threshold can be considered. Id. at 260-61 (Bartley, C.J., concurring in part, dissenting in part). The Court defined "employment in a protected environment" within 38 C.F.R. § 4.16(a) to unambiguously mean "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). When entitlement to TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In such a situation, the claim for TDIU has the same appeal period as that of the increased rating claim. Under the AMA, a Veteran may continuously pursue a claim or issue by timely filing a supplemental claim or appeal to the Board within one year from the date on which the agency of original jurisdiction issues a notice of a decision on a claim or issue. 38 C.F.R. § 3.2500 (a) and (c). If a claim is continuously pursued, then the effective date will be fixed in accordance with the receipt date for the initial claim or the date when entitlement arose, whichever is later. 38 C.F.R. § 3.2500(h)(1). The Board previously found the evidence raises an implied TDIU claim for the entire period on appeal. See Rice, supra. As of March 3, 2008, the Veteran was service-connected for the following disabilities: obstructive sleep apnea, rated at 50 percent; left knee chondromalacia at 20 percent; diabetes mellitus, type II, at 20 percent; left upper extremity carpal tunnel at 20 percent; right knee degenerative changes at 10 percent; left knee traumatic arthritis at 10 percent; left knee scar at 0 percent; and left thumb jam injury at 0 percent. From May 21, 2015, the Veteran was in receipt of a 100 percent combined disability rating. He is also service connected for depression, rated as 50 percent disabling, as of the same date. Turning to the evidence of record, when he first applied for TDIU in December 2005, the Veteran's highest level of education was his high school degree. He stated in his application that he had on the job training in management, bookkeeping, and recordkeeping. He wrote that this training took place from 1984 to 2000. As previously noted, his MOS was unit supply specialist, and he entered active duty service in 1984. See DD-214. In a January 2007 application for TDIU, the Veteran listed his previous employers from August 1999 to December 2005. He had worked in maintenance for two different employers, and from August 1999 to August 2000 he was self-employed. Two of these positions were 40 hours a week, and he worked 30-50 hours a week when self-employed. He also stated that he lost a total of 23 months of work due to illness during this period. The most he earned in a single year was $30,000.00 in 2003, and his highest gross earnings per month ranged from $700 to $1,900. By this point, he had completed his first year of college, working towards a business degree. In a September 2015 application, the Veteran claimed he was too disabled to work as of September 1, 2008. He listed employment at a local career center from January 2004 to January 2007, working 30 hours a week, and earning up to $680 a month. He wrote that he earned $23,000 in 2007 as a medical secretary. He also worked at a VA medical center (VAMC) from January 2008 to January 2009 where he worked in administration, working 40 hours a week. VA, as the Veteran's employer, provided a summary of the Veteran's absences from work from November 2007 to September 2008, reflecting that he used over 250 hours of paid time off and 53 hours of time off without pay. The Veteran stated that he completed his master's degree in media and communications in approximately January 2011. Finally, the Veteran is not considered disabled by the Social Security Administration (SSA), and he has not received any such benefits as of a July 2024 Inquiry to the SSA. The Veteran has been examined by VA for his disabilities many times. In a May 2006 VA examination for his right knee, the Veteran noted he had been unemployed since December 2005. He reported being able to walk a quarter of a mile and stand for ten minutes. Climbing stairs and walking several blocks would cause him fatigue and pain. In an October 2006 VA examination for his knees, the Veteran reported that in 2000 he was working as a restaurant manager, but a torn meniscus caused him to change jobs to working in maintenance for an apartment building. Both positions involved a good deal of walking, bending, lifting, and time on his feet. He reported that his chronic pain made it such that he was unable to obtain gainful employment. The Veteran reported that, at the time of the October 2006 examination, he was unemployed and looking for work that did not require as much physical labor. In May 2008, the Veteran reported for another VA examination of his knees. He stated that he injured his right knee at work while laying tile in February 2001. In November 2003, the Veteran had a work-related back injury. The Veteran also reported increasing pain and difficulty walking up and down stairs. Further, he could not sit comfortably without keeping his right knee elevated. He had good and bad days but generally could only sit for about an hour before the pain in his right knee got worse. In a September 2009 knee examination, the Veteran reported that the pain in his knees steadily increased over time. The examiner wrote "[e]xacerbating factors are going up and down stairs, walking, and prolonged sitting for any length of time leads to increased stiffness, also weather changes increase his discomfort." He was able to walk a quarter of a mile before needing to rest. He reported using a cane for a month and a half. He reported he was able to drive without difficulty. At a June 2010 hearing, the Veteran reported that he has to use his CPAP machine or he cannot think straight. In a September 2010 examination, the Veteran stated that at the time of the diagnosis of diabetes in 2006, he was "vaguely fatigued." The examiner noted that the Veteran's diabetes did not affect his schedule when he was working. The examiner noted the Veteran had excessive daytime somnolence and fatigue due to his sleep apnea. Though he was prescribed a CPAP machine, he still reported fatigue. He was still using a cane to get around. A June 2011 VA treatment record states, "In 2008, worked for the federal government as medical support clerk for eleven months. Has been unemployed since leaving the medical support clerk job... the sitting required worsened both knees and left hip pain, and he had to quit. No regular employment since, but is attending school cur[r]ently." At an April 2012 examination for his hips, the Veteran reported quitting his desk job in 2008 due to the amount of sitting required, which he said worsened the pain in his knees and left hip. He also stated he was in school on the date of the examination. In May 2015, the Veteran's knees and hips were examined again, this time for a potential rating reduction. The Veteran wore a boot and used a cane at the exam, because of a flare-up of gout. The Veteran is not service connected for gout. He stated that he was fired in 2008 from doing secretarial work, but the examiner did not indicate why he was fired or how that was relevant to a knee examination. The examiner wrote that the Veteran's knees pop when standing up from a sitting position. As the above evidence demonstrates, it is unlikely the Veteran was able to continue working physically demanding jobs by September 2008. There is no disputing that the Veteran's physical disabilities limited his mobility and caused him significant pain throughout the appeal period. It would not be feasible in the long-term for him to have a full-time job with even moderate physical demands such as prolonged walking, standing, lifting, bending, or carrying. Even though he had years of experience in areas such as maintenance, baking, and managing a restaurant, he credibly reported he was physically unable to continue these lines of work. The Veteran's physical disabilities also limited his abilities to perform sedentary work. The Veteran reported, for example, that any prolonged sitting would exacerbate his stiffness and pain. See September 2009 examination. He also reported that he needed to keep his right knee elevated at the May 2008 examination. The Veteran was also service connected for diabetes and obstructive sleep apnea, which both added to the fatigue caused by his physical limitations. The Veteran's mental limitations were not as severe as his physical limitations. Specifically, the mental limitations caused by the Veteran's conditions included fatigue, excessive daytime hypersomnolence, and difficulty concentrating. Thus, this claim comes down to whether the Veteran could perform the duties required for a sedentary or desk job. Although the term "sedentary" is context-specific, in this case, the Veteran's most recent position doing secretarial work at a desk was a sedentary job. The Veteran is qualified for a desk job, as he holds advanced degrees and has relevant experience. During the period on appeal, the Veteran obtained both his Bachelor's and Master's degrees in communications, a field in which less physically demanding jobs sedentary jobs might be available. However, there is evidence that the Veteran was unable to tolerate the amount of sitting required for a desk job. The Veteran reported at the June 2011 VA treatment record and the April 2012 examination that he quit his desk job doing secretarial work in 2008, due to difficulty sitting for long periods. The May 2015 examination suggests he was fired from this job but does not state the reason why. The least charitable reading of this evidence is that the Veteran was fired in 2008 because he lost 300 hours of work in less than a year. There is no evidence that the Veteran was fired for any other reason. Either way, it appears the Veteran was unable to work this sedentary/desk job in 2008, which he credibly reported was due to his physical limitations from his service-connected disabilities. Although the Veteran later earned two advanced degrees, his ability to perform the physical, not the mental, tasks associated with a desk job is at issue. Because college classes are not typically as long as an eight-hour workday, the degrees are some evidence he could work while seated for an hour or two, but not a full eight hour day. The evidence is in at least approximate balance, and the Veteran must be afforded the benefit of the doubt. His claim for TDIU must be granted. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.E. Yahner, Associate 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.