Citation Nr: 23039647
Decision Date: 07/19/23	Archive Date: 07/19/23

DOCKET NO. 08-29 836
DATE: July 19, 2023

ORDER

Entitlement to a rating for temporomandibular joint disease (TMD) with bruxism in excess of 20 percent from March 29, 2017 to December 18, 2019 and in excess of 30 percent from December 19, 2019 is denied. 

Entitlement to a compensable rating for residual surgical scars, right ankle, right knee, and left knee is denied. 

Entitlement to a rating in excess of 10 percent for right ankle painful scar from December 23, 2019 is denied. 

Entitlement to an effective date earlier than March 29, 2017 for the assignment of a 20 percent rating for TMD with bruxism is denied. 

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from July 5, 2007 to January 1, 2008 is granted. 

Entitlement to a TDIU from January 2, 2008, to June 1, 2019 is denied.  

FINDINGS OF FACT

1. From March 29, 2017 to December 18, 2019, the Veteran's TMD with bruxism was not manifested by interincisal range from 11 to 20 millimeters (mm), nor was it manifested by interincisal range of motion of 30 to 34 mm with dietary restrictions to full liquid and pureed foods, or; interincisal range of motion of 21 to 29 mm with dietary restrictions to soft and semi-solid foods, or; interincisal range of motion of 11 to 20 mm without dietary restrictions to mechanically altered foods. 

2. From December 2019, the Veteran's TMD with bruxism was not manifested by interincisal range from 0 to 10 mm, nor was it manifested by interincisal range of motion of 21 to 29 mm with dietary restrictions to full liquid and pureed foods, or; interincisal range of motion of 11 to 20 mm with dietary restrictions to all mechanically altered foods, or; interincisal range of motion of 0 to 10 mm without dietary restrictions to mechanically altered foods. 

3. The Veteran's residual surgical scars of the right knee and left knee are not painful, deep, or associated with underlying soft tissue damage, nor do they result in other disabling effects. 

4. The Veteran does not have three or four scars that are unstable or painful, and his painful right ankle scar is not unstable. 

5. There is no evidence showing a factually ascertainable increase in the Veteran's TMD with bruxism occurred prior to March 29, 2017. 

6. From July 5, 2007 to January 1, 2008, the Veteran met the schedular criteria for a TDIU, and his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. 

7. From January 2, 2008 to June 1, 2019, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. 

CONCLUSIONS OF LAW

1. From March 29, 2017 to December 18, 2019, the criteria for a rating in excess of 20 percent for TMD with bruxism were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905. 

2. From December 19, 2019, the criteria for a rating in excess of 30 percent for TMD with bruxism were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905.

3. The criteria for a compensable rating for residual surgical scars of the right knee and left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. 

4. The criteria for a rating in excess of 10 percent for right ankle painful scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. 

5. The criteria for entitlement to an effective date earlier than March 29, 2017 for the award of a 20 percent rating for TMD with bruxism have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). 

6. The criteria for entitlement to a TDIU were met from July 5, 2007 to January 1, 2008. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16.

7. The criteria for entitlement to a TDIU were not met prior from January 2, 2008 to June 1, 2019. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active naval service from January 1979 to January 1983 and from April 1983 to April 1999.

This matter comes to the Board of Veterans' Appeals (the Board) on appeal from multiple rating decisions. The Veteran's claim for entitlement to a TDIU was raised under Rice v. Shinseki, 22 Vet. App. 447 (2009), following an October 2007 rating decision.  

In May 2018, the Board denied the Veteran's claim for entitlement to a TDIU, concluding that the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation consistent with his education and occupational experiences. The Board also concluded that the Veteran's current employment was not considered a protected environment. 

The Veteran appealed the Board's May 2018 decision to the United States Court of Appeals for Veterans Claims (the Court). In a November 2018 Order, the Court entered a Joint Motion for Partial Remand (JMPR) of the parties, vacating the Board's decision and remanding the appeal to the Board. The November 2018 JMPR determined that the Board did not provide an adequate statement of reasons and bases as to why there was a lack of tension resulting from the accommodations provided to the Veteran and to why those accommodations were not extraordinary or beyond those that would be required by the Americans with Disabilities Act (ADA). 

The Board again denied entitlement to a TDIU in a June 2019 decision. Again, the Board concluded that the Veteran's employment was not considered a protected environment. 

Subsequently, the Veteran appealed the Board's June 2019 decision to the Court. In a February 2020 Order, the Court entered a Joint Motion for Remand (JMR) of the parties, again vacating the Board's decision and remanding the matter to the Board. The February 2020 JMR concluded that the Board provided no discussion as to how it reached the conclusion that the accommodations that were provided to the Veteran were legally required. 

During the course of the appeal, the AOJ granted entitlement to a TDIU from June 2, 2019. The remaining issue on appeal is whether a TDIU is warranted prior to June 2, 2019. 

As for the other issues on appeal, they stem from a March 2018 rating decision that granted entitlement to an increased rating of 20 percent for the Veteran's service-connected TMD with bruxism effective March 29, 2017. The AOJ also continued the noncompensable rating assigned for his service-connected residual surgical scars, right ankle, right knee, and left knee. The Veteran appealed, seeking (1) a rating in excess of 20 percent for TMD with bruxism, (2) an effective date for the 20 percent rating assigned for TMD with bruxism earlier than March 29, 2017, and (3) a compensable rating for residual surgical scars, right ankle, right knee, and left knee. During the course of the appeal, the rating assigned for the Veteran's TMD with bruxism was increased to 30 percent effective December 19, 2019. Such created a staged rating. A separate 10 percent evaluation was also assigned for right ankle painful scar from December 23, 2019.

Increased Ratings 

Disability ratings are determined in accordance with the Department of Veterans Affairs' (VA's) Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 

The Board will consider whether staged ratings should be assigned to compensate for times when the disability may have been more severe than at other times during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to a Rating for TMD with Bruxism in Excess of 20 Percent from March 29, 2017 to December 18, 2019 and in Excess of 30 Percent from December 19, 2019

The Veteran is currently in receipt of staged ratings for his service-connected TMD with bruxism. As relevant to the period on appeal, his TMD with bruxism is rated as 20 percent disabling from March 29, 2017 to December 18, 2019 and 30 percent disabling from December 19, 2019. 

The Veteran's TMD is rated under 38 C.F.R. § 4.150, Diagnostic Code 9905 as limited motion of the temporomandibular articulation. 

The criteria for evaluating dental conditions under Diagnostic Code 9905 were amended effective September 10, 2017. See 82 Fed. Reg. 36,080 (Aug. 3, 2017). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new version of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. 

Prior to September 10, 2017, Diagnostic Code 9905 assigned a 10 percent rating for either a range of lateral excursion from 0 to 4 mm or an interincisal range from 31 to 40 mm. A 20 percent rating was assigned for an interincisal range from 21 to 30 mm. A 30 percent rating was assigned for an interincisal range from 11 to 20 mm. A 40 percent rating was assigned for an interincisal range from 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017).

Under the post-amendment version of Diagnostic Code 9905, a 10 percent rating is assigned for a range of lateral excursion from 0 to 4 mm, or; for an interincisal range of 30 to 34 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 20 percent rating is assigned for an interincisal range of 30 to 34 mm with dietary restrictions to soft and semi-solid foods, or; for an interincisal range of 21 to 29 mm without dietary restrictions to mechanically altered foods. A 30 percent rating is assigned for an interincisal range of 30 to 34 mm with dietary restrictions to full liquid and pureed foods, or; for an interincisal range of 21 to 29 mm with dietary restrictions to soft and semi-solid foods, or; for an interincisal range of 11 to 20 mm without dietary restrictions to mechanically altered foods. A 40 percent rating is assigned for an interincisal range of 21 to 29 mm with dietary restrictions to full liquid and pureed foods, or; for an interincisal range of 11 to 20 mm with dietary restrictions to all mechanically altered foods, or; for an interincisal range of 0 to 10 mm without dietary restrictions to mechanically altered foods. A maximum 50 percent rating is assigned for an interincisal range of 0 to 10 mm with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2018). 

Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note (1). For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 55 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note (2). "Mechanically altered foods" are defined by regulation as foods that are altered by blending, chopping, grinding, or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semi-soft foods. The use of texture-modified diets must be recorded or verified by a physician. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note (3). 

Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. 

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." 

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and the extent of functional impairment of flare-ups from the veterans themselves, when a flare-up is not observable at the time of examination. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore not be reflected on range of motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Nonetheless, even when the background factors listed in 38 C.F.R. §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited; a separate or higher rating under 38 C.F.R. §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 

	A. Entitlement to a Rating in Excess of 20 Percent from March 29, 2017 	to December 18, 2019

The Veteran received a VA examination pertaining to his TMD with bruxism in March 2017. During this examination, the Veteran described difficulty opening his mouth wide. He reported that it was difficult to floss his teeth and that yawning and dental examinations were painful. It was also difficult for him to eat large fruits and other food items, as this caused pain. At times, it felt like his jaw locked, particularly when he tried to yawn. Interincisal distance was 42 mm, right lateral excursion was 2 mm, and left lateral excursion was 3 mm. Based on the pre-amendment version of Diagnostic Code 9905, these measurements warranted a 10 percent rating because he exhibited lateral excursion from 0 to 4 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017).

However, after observed repetitive use, the Veteran's interincisal distance was 30 mm, right lateral excursion was 1 mm, and left lateral excursion was 2 mm. Such supports the assignment of a 20 percent rating because the Veteran's interincisal range was from 21 to 30 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). A 30 percent rating is not warranted, however., The Veteran's interincisal range was not from 11 to 20 mm or approximated, which is required for a 30 percent rating under the pre-amendment version of Diagnostic Code 9905. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017).

The Board has considered whether the Veteran exhibited additional functional loss due to pain, weakness, excess fatigability, and/or incoordination. Upon examination, pain was noted on mouth opening, bilateral lateral excursion, and chewing (mastication). The examiner also noted functional loss due to pain, fatigue, weakness, and lack of endurance after three repetitions. Although there was evidence of pain, fatigue, weakness, and lack of endurance, such symptoms did not result in additional functional loss beyond that already contemplated by the 20 percent rating assigned under Diagnostic Code 9905. As such, a rating in excess of 20 percent is not warranted based on additional functional loss due to pain, fatigue, weakness, and lack of endurance, as the Veteran's interincisal range was still greater than 20 mm, even considering the Veteran's symptoms. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017).

As for the effects of flare-ups and repeated use over time, the March 2017 VA examination report notes that the Veteran experienced flare-ups of TMD with bruxism. He reported that his flare-ups were worse on the right side and that his jaw continuously popped during a bad flare-up. He could not eat, chew, yawn, or open his mouth during a flare-up. It was also difficult to brush his teeth. Moreover, such flare-ups caused migraines. However, the examiner did not elicit information about the frequency, duration, and precipitating and alleviating factors of flare-ups, as required by Sharp, 29 Vet. App. at 35-36. Nor did the examiner estimate the degree of functional impairment of the Veteran's temporomandibular joint during such flare-ups. 

Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated rather than a brief snapshot in time. 

With that in mind, consideration has been given to the Veteran's report of experiencing flare-ups resulting in increased pain, decreased motion, and difficulty in eating. The reported flare-ups are not shown to additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The contemporaneous treatment records contain little, if any, findings pertinent to flare-ups, much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. To the contrary, the March 2017 VA examiner indicated that the Veteran did not experience any additional functional loss due to pain, fatigue, weakness, lack of endurance, or incoordination after repeated use over time. 

Accordingly, a rating in excess of 20 percent is not warranted based on flare-ups or repetitive use over time, as the evidence does not show that his interincisal range was 11 to 20 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017).

The Board has considered the Veteran's lay statements and treatment records demonstrating functional loss due to pain, decreased motion, and difficulty eating due to his TMD. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by such statements would not result in interincisal range from 11 to 20 mm, which is required for a 30 percent rating under the pre-amendment criteria. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017).

A rating in excess of 20 percent is also not warranted under the post-amendment version of Diagnostic Code 9905 for the period beginning September 10, 2017. The evidence does not show that the Veteran's diet was restricted to full liquid and pureed foods. Full consideration has been given to the Veteran's complaints of difficulty eating. However, he has not stated that his diet was restricted to full liquid and pureed food. Moreover, the use of texture-modified diets must be recorded or verified by a physician. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note (3). Such is not shown in the Veteran's VA examinations or treatment records. Accordingly, a 30 percent rating is not warranted under the post-amendment version of Diagnostic Code 9905. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2018).

In sum, for the reasons and bases discussed, the evidence for the claim for a rating in excess of 20 percent from March 29, 2017 to December 18, 2019 versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). A rating in excess of 20 percent for TMD with bruxism from March 29, 2017 to December 18, 2019 is therefore denied. 

	B. Entitlement to a Rating in Excess of 30 Percent from December 19, 	2019

The Veteran's next VA examination occurred in December 2019. The Veteran continued to report difficulty eating and talking due to pain caused by his TMD with bruxism. His interincisal distance was 30 to 34 mm. Right lateral excursion was greater than 4 mm and left lateral excursion was from 0 to 4 mm. After three repetitions, the Veteran's interincisal distance was between 21 and 29 mm. After repetitive use over time, the examiner estimated that the Veteran's interincisal range of motion would be from 21 to 29 mm due to pain, fatigue, weakness, lack of endurance, and incoordination. During flare-ups, the examiner estimated that the Veteran's interincisal range of motion would be from 11 to 20 mm due to pain, fatigue, weakness, lack of endurance, and incoordination. Based on the estimated range of motion during flare-ups, the AOJ assigned a 30 percent rating from December 19, 2019. 38 C.F.R. § 4.150, Diagnostic Code 9905. 

In determining whether a rating in excess of 30 percent is warranted, the Board has considered additional functional loss due to pain, weakness, excess fatigability, and/or incoordination. The Veteran exhibited pain on the right upon mouth opening and chewing (mastication), while he exhibited pain on the left upon mouth opening, left lateral excursion, and chewing (mastication). The examiner also noted additional functional loss on the right due to fatigue, weakness, lack of endurance, and incoordination after three repetitions. His right lateral excursion was decreased to 0 to 4 mm, while his left lateral excursion was unchanged. Interincisal distance was also decreased to 21 to 29 mm. 

Despite evidence of fatigue, weakness, lack of endurance, and incoordination, such symptoms did not result in additional functional loss beyond that already contemplated by the 30 percent rating assigned under Diagnostic Code 9905. Even considering the Veteran's additional functional loss, his interincisal range of motion was not from 0 to 10 mm, which is required for a 40 percent rating under the pre-amendment version of Diagnostic Code 9905. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). Moreover, the December 2019 VA examination did not find that the Veteran had any dietary restrictions due to his TMD with bruxism. For a range of motion of 21 to 29 mm, it must be shown that the Veteran has dietary restrictions to full liquid and pureed foods in order for a 40 percent rating to be warranted. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2018). Such dietary restrictions have not been shown. Nor has the Veteran's interincisal range of motion been shown to be 11 to 20 mm with dietary restrictions to all mechanically altered foods or 0 to 10 mm without dietary restrictions to mechanically altered foods, even considering painful motion, fatigue, weakness, lack of endurance, and incoordination. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2018). 

As for the effects of flare-ups and repeated use over time, the Veteran reported flare-ups during the December 2019 VA examination. Flare-ups of the right temporomandibular joint occur with talking and eating to the point of biting the inside of his cheek. Likewise, flare-ups of the left temporomandibular joint occur every time there is talking and eating involved. These flare-ups are severe and last most of the day. They are precipitated by eating and talking and alleviated by not eating or talking much. During flare-ups, the December 2019 VA examiner estimated that the Veteran's interincisal distance would be from 11 to 20 mm and right and left lateral excursion would be from 0 to 4 mm due to pain, fatigue, weakness, lack of endurance, and incoordination. After repetitive use over time, the examiner estimated that the Veteran's interincisal distance would be from 21 to 29 mm and his right and left lateral excursion would be from 0 to 4 mm due to fatigue, weakness, lack of endurance, and incoordination. 

A rating in excess of 30 percent is not warranted under either version of Diagnostic Code 9905 based on functional loss during flare-ups or after repetitive use over time. The Veteran's interincisal range of motion was not from 0 to 10 mm during a flare-up or after repetitive use over time, which is required for a 40 percent rating under the pre-amendment version of Diagnostic Code 9905. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). Furthermore, the Veteran's interincisal range of motion was not 21 to 29 mm with dietary restrictions to full liquid and pureed foods, 11 to 20 mm with dietary restrictions to all mechanically altered foods, or 0 to 10 mm without dietary restrictions to mechanically altered foods, even during flare-ups or after repetitive use over time. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2018). As noted above, there is no evidence that the Veteran has a restricted diet due to his TMD with bruxism. Accordingly, a rating in excess of 30 percent is not warranted based on flare-ups or repetitive use over time, as the evidence does not show that his interincisal range was 11 to 20 mm or that he had a restricted diet. 38 C.F.R. § 4.150, Diagnostic Code 9905.

The Board has again considered the Veteran's lay statements and treatment records demonstrating functional loss due to pain, decreased motion, and difficulty eating due to his TMD with bruxism. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by such statements would not result in interincisal range from 11 to 20 mm. Moreover, the Veteran has not asserted that he has a restricted diet due to his TMD with bruxism. The use of texture-modified diets must be recorded or verified by a physician, and such has not been shown here. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2018), Note (3). A 40 percent rating is therefore not warranted under the pre- or post-amendment version of Diagnostic Code 9905. 38 C.F.R. § 4.150, Diagnostic Code 9905.

Based on the above, for the reasons and bases discussed, the evidence for the claim for a rating in excess of 30 percent from December 19, 2019 versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. A rating in excess of 30 percent for TMD with bruxism from December 19, 2019 is denied. 

2. Entitlement to a Compensable Rating for Residual Surgical Scars of the Right Ankle, Right Knee, and Left Knee

The Veteran is currently in receipt of a noncompensable evaluation for his service-connected residual surgical scars of the right ankle, right knee, and left knee. He contends that he is entitled to a compensable rating for this condition. The Board notes that a separate 10 percent evaluation has been assigned for right ankle painful scar effective December 23, 2019.  

The Veteran's residual surgical scars of the right ankle, right knee, and left knee are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.

VA amended the criteria for rating skin disabilities effective from August 13, 2018. Diagnostic Code 7805 was not changed by these amendments.

Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be considered under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. 

The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the Veteran's residual surgical scars of the right ankle, right knee, and left knee under Diagnostic Code 7805, as there are no other disabling effects not considered in a rating already provided under Diagnostic Codes 7800-7804. 

The Veteran first underwent a VA examination pertaining to his scars in March 2017. The examination report noted one linear 18 centimeters (cm) by .5 cm scar on the right ankle, three linear scars measuring 1 cm by .5 cm on the right knee, and three linear scars measuring .5 cm by 1 cm and one linear scar measuring 3 cm by .5 cm on the left knee. These scars were not painful, unstable, or tender to palpation, and they did not result in underlying soft tissue damage. None of the scars resulted in limitation of motion, functional impact, or any other symptoms.  

Another VA examination was performed in December 2019. At this time, the Veteran experienced pain and numbness of the right ankle scar. The right ankle scar was also tender to the touch and there was a slight loss of sensation immediately surrounding the scar. He did not experience pain or tenderness of his right knee and left knee scars. His scars were not unstable, nor did they result in underlying soft tissue damage. None of the Veteran's scars resulted in limitation of motion, functional impact, or any other symptoms. 

Based on the December 2019 VA examination, a 10 percent rating was assigned for right ankle painful scar from December 23, 2019. 

However, the Board concludes that Diagnostic Code 7805 does not provide a compensable rating for the Veteran's residual surgical scars of the right knee and left knee. Other than the right ankle painful scar (addressed below), the Veteran's scars do not result in disabling effects that are not otherwise addressed under Diagnostic Codes 7800-7804. At no point has the Veteran asserted that his right knee and left knee scars were painful, unstable, tender to palpitation, resulted in underlying soft tissue damage, or caused limitation of motion, functional impairment, or any other symptoms. Moreover, the March 2017 and December 2019 VA examiners found that the Veteran's scars resulted in no functional impairment. 

The Board has also considered whether a rating in excess of 10 percent is warranted for the Veteran's right ankle painful scar from December 23, 2019 under Diagnostic Code 7804. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. 

However, as demonstrated above, the only scar shown to be painful is the Veteran's right ankle scar. At no point has he contended that his right knee or left knee scars are painful. Furthermore, none of his scars, including his right ankle scar, are unstable. Thus, a rating in excess of 10 percent is not warranted for the Veteran's service-connected right ankle painful scar. 38 C.F.R. § 4.118, Diagnostic Code 7804.

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that his residual surgical scars of the right ankle, right knee, and left knee are manifested by any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804. Other than his right ankle painful scar, the Veteran has simply provided no evidence, lay or otherwise, that he has experienced any symptoms associated with his scars. 

Thus, for the reasons and bases discussed, the evidence for the claim for a compensable rating for residual surgical scars of the right ankle, right knee, and left knee and a rating in excess of 10 percent for right ankle painful scar versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. A compensable rating for residual surgical scars of the right ankle, right knee, and left knee and a rating in excess of 10 percent for right ankle painful scar from December 23, 2019 are denied. 

3. Entitlement to an Effective Date Earlier Than March 29, 2017 for the Assignment of a 20 Percent Rating for TMD with Bruxism

The Veteran seeks an effective date earlier than March 29, 2017 for the assignment of an increased rating of 20 percent for TMD with bruxism. 

The Veteran was initially awarded service connection for TMD in a May 1999 rating decision. A noncompensable rating was assigned from May 1, 1999. The Veteran did not appeal this rating decision, nor did he submit any additional evidence in support of an increased rating within a year of this rating decision. As such, the May 1999 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 

In April 2012, the Veteran filed a supplemental claim, seeking an increased rating for his TMD. In November 2013, the AOJ issued a rating decision denying a compensable rating for the Veteran's service-connected TMD. The Veteran did not appeal the November 2013 rating decision, nor did he submit additional pertinent evidence in support of an increased rating within one year. The November 2013 rating decision therefore became final as well. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 

In a March 2018 rating decision, the AOJ increased the evaluation assigned for the Veterans TMD with bruxism to 20 percent. The effective date of this increase was March 29, 2017, the date on which the examination showing an increase in disability was performed. The Board notes that the Veteran did not file a separate claim for an increased rating prior to this rating decision; rather, the AOJ appears to have interpreted the Board's August 2016 remand as implicitly raising the issue of entitlement to a compensable rating for TMD with bruxism in connection with the claim for entitlement to a TDIU. 

Generally, the effective date of an award of compensation based on a claim for increase will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1). An exception to that rule provides that the effective date of an award of an increased evaluation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if the claim for increase is received within one year of such date. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). 

Here, the earliest date on which it is factually ascertainable that an increase in the Veteran's TMD with bruxism occurred is March 29, 2017. The March 2017 VA examination is the first VA examination that showed that the Veteran experienced interincisal range of motion from 21 to 30 mm, which is required for a 20 percent rating under the version of Diagnostic Code 9905 in effect at that time. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). The prior VA examination, performed in June 2012, did not show interincisal range of motion from 21 to 30 mm, even considering painful motion, repeated use over time, and flare-ups. Furthermore, there are no VA or private treatment records or lay statements indicating that a factually ascertainable increase in disability occurred prior to March 29, 2017. 

As there was no factually ascertainable increase in disability prior to March 29, 2017, followed by a claim for an increased rating received within one year, the exception outlined in 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) does not apply, and an earlier effective date is not warranted. Thus, the earliest permissible effective date for the effective date for the increased evaluation for the Veteran's service-connected TMD with bruxism is March 29, 2017, the date on which a factually ascertainable increase in disability occurred. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1).

4. Entitlement to a TDIU Prior to June 2, 2019

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38?C.F.R. §?4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action, and; (5) multiple disabilities incurred as a prisoner of war. 38?C.F.R. §?4.16(a).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31?Vet. App.?58, 73 (2019). The economic component refers to 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. Ray, 31 Vet. App. at 73; see also Ortiz-Valles v. McDonald, 28?Vet. App.?65, 69-70 (2016). The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Ray, 31 Vet. App. at 73. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle workplace stress, get along with others, and demonstrate reliability and productivity). Ray, 31 Vet. App. at 73. 

An award of a TDIU is an individualized determination, specific to the veteran's particular circumstances, such as history, education, skills, and training. See Todd v. McDonald, 27?Vet. App.?79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4?Vet. App.?361, 363 (1993). 

The Veteran meets the schedular criteria for a TDIU. He has had a combined disability rating of at least 70 percent since July 5, 2007. He also had a combined disability rating in excess of 40 percent for disabilities affecting a single body system (i.e., orthopedic (right ankle arthritis, left knee arthritis, right knee arthritis, and instability of the left ankle)) from that date. Accordingly, the Board may consider the claim for a TDIU on a schedular basis beginning July 5, 2007. 38 C.F.R. § 4.16(a). 

Regarding the Veteran's work history, the record shows that he worked as a fireman apprentice, boiler technician, machinist's mate, and course instructor during service. After service, he worked as a boiler technician. The Veteran reported that he stopped working as a boiler technician in December 2006, as the job was too physically and mentally strenuous. After he left his job as a boiler technician, the Veteran had difficulty obtaining employment, as he reported that he was unable to pass the physical examination requirements needed for employment. 

In a September 2012 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran reported that he was attending college during his period of unemployment and working toward obtaining an Industrial Engineering Management degree. He successfully obtained his bachelor's degree in 2012. See the VA Form 21-8940 dated June 2016. In the September 2012 application for a TDIU, the Veteran indicated that his disability had affected his full-time employment since January 2007. He further stated that he last worked full-time in December 2006.

In February 2013, the Veteran obtained full-time employment as an application engineer. He described his work as having to assess on site industrial/mechanical equipment for the purpose of providing quotes to repair, install, and upgrade. See the written argument of the Veteran's attorney dated February 2017. It is the Veteran's contention, however, that this work is not substantially gainful employment, but instead should be considered a protected work environment. See id. In support of this contention, the Veteran stated that his boss has a son with similar problems so his employer has modified the job accordingly. See id.

The Veteran has been in receipt of a TDIU from June 2, 2019, the date on which he became unemployed. The question is whether a TDIU is warranted for the period prior to June 2, 2019. 

	A. From July 5, 2007 to January 1, 2008

The Board will first address the period of time before the Veteran obtained employment as an application engineer in February 2013. 

As noted above, the Veteran stopped working as a boiler technician in December 2006 because the job was too physically and mentally strenuous. In his September 2012 application for a TDIU, he reported that his disabilities affected his full-time employment since January 2007. As early as February 2000, the Veteran reported difficulty at work due to his service-connected disabilities. He first reported that his service-connected finger disabilities rendered him unable to hold tools. In November 2007, he stated that he had been unable to work since December 2006 due to his constant pain and inability to lift heavy equipment or stand for a prolonged period of time, which is required for work as a boiler technician. He also reported that his work as a boiler technician was too mentally strenuous, as he had a hard time concentrating and focusing on tasks. He could not drive for more than 25 minutes or on busy streets or freeways due to panic attacks associated with his psychiatric disability. 

In September 2008, the Veteran stated that he could not return to his trade as a boiler technician, writing that, "it's a back breaking job and [he has] very little left." After leaving his job as a boiler technician, the Veteran repeatedly indicated that he had trouble finding a new job. In September 2011, he stated that he had failed to fulfill the physical requirements for any job for which he was qualified and therefore had extreme difficulty in obtaining employment due to his service-connected disabilities.

The Veteran indicated that he was returning to school to obtain an education to find a different job. Indeed, as noted above, the Veteran began college in January 2008 and obtained a bachelor's degree in industrial engineering management in 2012. In February 2013, the Veteran obtained employment as an application engineer. 

Based on the foregoing, the Board concludes that a TDIU is warranted from July 5, 2007, the date the Veteran met the schedular criteria, to January 1, 2008 when he began college. Although the Veteran's full-time employment as a boiler technician ended due to his service-connected disabilities in December 2006, he did not meet the schedular criteria until July 5, 2007. Therefore, July 5, 2007 is the earliest date a TDIU can be awarded. During the period between July 5, 2007 and January 2008, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. He was unable to obtain a job because he did not meet the physical requirements for jobs due to his service-connected disabilities. However, beginning in January 2008, the Veteran began a full-time college program in pursuit of his bachelor's degree in industrial engineering management. Although he was not employed from January 2008 to 2012, he was attending college during this period of unemployment. A TDIU was therefore no longer warranted beginning January 1, 2008. 

Resolving reasonable doubt in the Veteran's favor, the Board concludes that a TDIU is warranted from July 5, 2007 to January 1, 2008. 

	B. From January 2, 2008 to 2012

As noted above, the Veteran began a full-time college program in January 2008. The Veteran earned his bachelor's degree in 2012. The fact that the Veteran was a full-time college student from 2008 to 2012 precludes the assignment of a TDIU during that period. He took approximately four years to earn his degree, which is within the time that a full-time student would ordinarily earn such a degree. The fact that the Veteran successfully completed his college education and earned his bachelor's degree, which shows that he was able to attend classes and complete his schoolwork. Thus, the Veteran's service-connected disabilities did not prevent him from completing a rigorous college program. A TDIU is therefore not warranted from January 2, 2008 to 2012 while the Veteran was a full-time college student. 

	C. From 2012 to January 31, 2013

The Veteran reports that he earned his bachelor's degree in 2012, but he did not begin his employment as an application engineer until February 1, 2013. The record contains no evidence regarding the Veteran's employment status between when he earned his degree and when he was hired as an application engineer on February 1, 2013. The Veteran did not report that his service-connected disabilities prevented him from securing and following a substantially gainful occupation during that period. Thus, there is no evidence supporting the grant of a TDIU from 2012 to January 31, 2013, the day before the Veteran began working as an application engineer.

	D. From February 1, 2013 to June 1, 2019

The Board now turns to the period beginning February 1, 2013, which is when he was hired as an application engineer. 

As an application engineer, his highest gross earnings per month totaled $6,645, amounting to an annual salary of over $67,000. The Veteran's annual income well exceeded the poverty threshold for one person, as the U.S. Department of Commerce determined the poverty threshold to be $11,460 in 2013, $11,670 in 2014, $11,770 in 2015, $11,880 in 2016, $12,060 in 2017, $12,140 in 2018, and $12,490 in 2019. See Prior HHS Poverty Guidelines and Federal Register References, Office of the Assistant Secretary for Planning and Evaluation, https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines/prior-hhs-poverty-guidelines-federal-register-references, (last visited July 6, 2023).

As for the noneconomic component discussed in Ray, the Veteran reports that his ability to work, including in his job as an application engineer, was significantly impacted by his service-connected disabilities. 

The Veteran reported that his orthopedic disabilities rendered him "bound to [his] desk for most of the day." He could not perform certain job tasks, like climbing ladders at job sites, due to his physical disabilities, and he had to take a co-worker to job sites with him to drive him and perform the physically strenuous tasks that his position requires. 

The Veteran has provided extensive descriptions of the effects of his physical and mental disabilities. Regarding his physical disabilities, especially his service-connected knee and ankle disabilities, he stated:

I have issues standing and sitting for more than 15 minutes at a time. If I stand or sit any longer, I start to feel pain in my knees and ankles. The only relief I have is to move around. When I do stand, I have to lean on something to keep the weight off of my legs as much as possible. I also have problems with kneeling and standing from a kneeling position. I need to either brace myself on something stationary or have another person help me get back up to my feet. I cannot bend my knees straight down because I am worried that they are unstable and I might fall.

He further reported that his knee and ankle disabilities cause discomfort, making it hard for him to sleep for more than two or three hours per night, thus causing him trouble staying awake at work. Moreover, his finger disabilities render him unable to grip objects securely and that he regularly drops tools. 

As for the mental effects of his disabilities, the Veteran reported that his service-connected psychiatric disorder impairs his ability to work as well. He could not drive long distances because "driving triggers [his] anxiety." When he felt a panic attack coming on at work, he "retreat[ed] into [his] own office and tr[ied] to deal with it that way so that [he was] not as disruptive to the rest of the office." He stated that his employer was understanding of his struggles and are friendly to veterans, so they allowed him to step outside for a few minutes during the workday so he could "maintain [his] composure." He also believed that his service-connected PTSD causes chronic sleep impairment. He stated that he was always tired and had trouble staying awake at work. Furthermore, he noted that he was "far more agitated" than he used to be and that he had a short temper when interacting with others. 

VA examinations conducted throughout the period on appeal demonstrate that various examiners consistently indicated that the Veteran's service-connected disabilities could affect his ability to perform certain types of employment but that he was not precluded from all employment 

Regarding his bilateral knee disabilities, a January 2017 VA examination concluded that the Veteran had limitations on standing, walking, and sitting. Likewise, an April 2017 VA examination pertaining to the Veteran's knees noted limitations on prolonged walking, standing, sitting, and using stairs, as well as an inability to run, jump, or climb. An April 2017 VA examination regarding the Veteran's ankle also noted limitations on prolonged walking, standing, sitting, and using stairs and an inability to run, jump, or climb. An April 2017 VA examination regarding his fingers also noted functional impairment due to difficulty gripping and holding objects.

As for his psychiatric condition, an April 2017 VA examination noted occupational and social impairment with reduced reliability and productivity due to such symptoms as chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events), panic attacks occurring weekly or less often, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and difficulty with concentration and focus. Although the Veteran noted occasional problems at work due to panic attacks, he reported that his employer was accommodating with him if he got panic attacks on the job. He ultimately stated that things were going well at work. 

The April 2017 VA examiner also provided an opinion specifically pertaining to the Veteran's employability as it relates to his psychiatric condition. She noted that the Veteran had been working full-time at his current job for the past three years. He reported some functional impairment related to his panic disorder that interfered with work. These panic attacks caused him to have to take breaks at work and on occasion leave work until his panic attack passes. However, he did not miss days of work due to his symptoms. He stated that his employer was supportive of him and made accommodations for him when he had panic attacks at work. Ultimately, the examiner concluded that the Veteran's psychiatric condition has led to reduced reliability and productivity with some impact on his physical and sedentary employment. However, that impact is not significant enough to warrant a finding that he is unable to be gainfully employed. 

The record also contains a March 2017 private employability evaluation from a certified vocational consultant. Based on a review of the Veteran's claims file and a telephonic interview with the Veteran, the vocational consultant concluded that the Veteran's "service-connected disabilities prevent him from securing and following a substantially gainful occupation unless he is provided with adequate work accommodations in a protected environment." The vocational consultant found that the Veteran's productivity, work quality, and attendance would be adversely affected by his service-connected disabilities without receiving workplace accommodations. This applies to both physical and sedentary employment. The vocational consultant's opinion was based on the physical effects of the Veteran's orthopedic disabilities, as well as the mental effects of his PTSD. He concluded that the Veteran's ability to work was affected by his limitations in sitting, standing, walking, ascending and descending stairs, gripping, commuting to and from work, maintaining a daily schedule without interruptions, difficulties speaking with customers for extended periods of time, and attending work activities due to panic attacks. 

Despite the impairment the Veteran faced due to his service-connected disabilities, he was nevertheless able to successfully perform his job duties from February 2013 to June 2019. The evidence does not show that the Veteran failed to perform his job duties or was reprimanded at work due to his disabilities. Rather, the Veteran repeatedly indicated that he was successful at work. Thus, the Veteran was capable of performing the physical and mental acts required by his employment as an application engineer prior to June 2, 2019. See Van Hoose, 4 Vet. App. at 363.

The Veteran does not contest that he successfully held employment from February 2013 to June 2019 or that his income as an application engineer exceeded the poverty threshold for one person. Rather, the Veteran and his attorney contend that the Veteran's job should be considered marginal employment because it occurred in a protected work environment. In a sworn affidavit dated June 2016, the Veteran reported that he was only able to maintain his current employment due to the accommodations provided by his employer. 

Specifically, the Veteran stated that his job duties require him to complete job site visits to provide cost estimates for product installations. See the Veteran's statement dated June 2016. However, he stated that, due to his service-connected disabilities, he is unable to drive to the sits and is unable to perform the physical tasks while there. Id. Accordingly, his employer allows him to take a co-worker who drives him to the job site and completes any physical tasks that the Veteran cannot complete. Id. The Veteran also reported that he has panic attacks at least twice a week and that his employer provides him with office space where he can retreat when he has the attacks. Id. He is also permitted to take additional breaks during the work day to deal with his anxiety. Id.

Marginal employment may be held to exist, on a facts-found basis, including, but not limited to, employment in a "protected environment" such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). 

In Cantrell v. Shulkin, 28 Vet. App. 382 (2017), the Court addressed this method of establishing marginal employment which required the Court to review the meaning of employment in a protected work environment. The Court found that the plain language of 38 C.F.R. § 4.16(a) does not expressly define employment in a protected environment and that the nonexhaustive list of examples of what may constitute employment in a protected environment, i.e., a family business or sheltered workshop, fails to resolve this uncertainty. The Court also determined that it was unable to defer to the Secretary's definition, finding instead that the Secretary had refused to provide any definition of employment in a protected environment for the Court to analyze. Absent an articulated standard for employment in a protected environment, the Court concluded that it was unable to effectively review the Board's decision. 

As noted in Cantrell, "protected environment" has not been defined by VA regulation. Thus, in determining the meaning of "protected environment" in the context of awarding a TDIU, the Board will address to other theories of statutory interpretation: the ordinary meaning of the regulation, the context of the regulation, and the purpose of the regulation. 

When a term is undefined by statute, it is appropriate to give the term its ordinary meaning. See Kouichi Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012) ("When a term goes undefined in a statute, we give the term its ordinary meaning.). Merriam-Webster's Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." See Protect, Merriam-Webster's Online Dictionary, https://www.merriam-webster.com/dictionary/protect (last visited July 6, 2023). "Contingent" can mean "likely but not certain to happen: possible." See Contingent, Merriam-Webster's Online Dictionary, https://www.merriam-webster.com/dictionary/contingent (last visited July 6, 2023). Thus, the ordinary meaning of "protected environment" indicates that a protected environment may exist when one's employment is not based on merit alone, but rather is established to save the individual from likely financial loss. 

The Veteran's employment as an application engineer does not fall within the ordinary meaning of "protected environment." There is no indication that the Veteran's employment was not based on merit; rather, the Veteran was qualified for his job, as he possessed a bachelor's degree in industrial engineering management. He has not provided any evidence that he ever faced disciplinary action or reprimands for failing to perform his job duties, instead repeatedly stating that things were going well at work. 

Moreover, while the Veteran has stated that his employer provided accommodations for his disabilities and that they were "friendly" to veterans, this does not equate to trying save the Veteran from likely financial loss. Rather, what the Veteran describes is a workplace culture and attitude aimed at supporting veterans shared by businesses and public sector employers nationwide. Indeed, recent legislation has expressly encouraged employers to hire veterans. For instance, the Work Opportunity Tax Credit is a Federal tax credit available to employers who hire and employ veterans, as well as other targeted groups who have faced significant barriers to employment. See Work Opportunity Tax Credit, Internal Revenue Service (Oct. 12, 2022), https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit. The Returning Heroes Tax Credit and Wounded Warrior Tax Credit, both passed as part of The Vow to Hire Heroes Act of 2011, also incentivize employers to hire unemployed veterans. The Returning Heroes Tax Credit provides incentives to hiring both short-term and long-term unemployed veterans, while the Wounded Warrior Tax Credit added a new tax credit for employers who hire veterans with service-connected disabilities who have been unemployed for longer than six months. See Fact Sheet on the Returning Heroes and Wounded Warrior Tax Credits,  https://obamawhitehouse.archives.gov/sites/default/files/fact_sheet_on_veteran_tax_credits-1.pdf (last visited July 6, 2023). Initiatives such as these were aimed at combating the high level of unemployment among veterans. Indeed, recent data suggests that the unemployment rate for all veterans decreased from 4.4 percent in 2021 to 2.8 percent in 2022. See Employment Situation of Veterans-2022, Bureau of Labor Statistics, U.S. Department of Labor (Mar. 21, 2023),  https://www.bls.gov/news.release/pdf/vet.pdf. 

Thus, there is no evidence that the Veteran's employer hired him simply because he was a veteran and because they wanted to save him from financial loss. The Veteran was qualified for his job and performed his job duties successfully with the accommodations provided to him. Nothing in the record suggests that the Veteran's employer was trying to save him from financial loss by hiring him; rather, their "friendly" attitude toward veterans is consistent with initiatives encouraged across the country. The Veteran's employment as an application engineer is therefore not a "protected environment" within the ordinary meaning of 38 C.F.R. § 4.16(a). 

Canons of statutory interpretation also instruct interpreters to look to the context of a sentence in order to construe the meaning of an undefined term. United States v. Costello, 666 F.3d 1040, 1044 (2012) ("Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings."). The doctrine of noscitur a sociis is a canon of statutory interpretation that states that the meaning of an ambiguous term in a regulation can be understood by reference to the words associated with it. See Dubin v. United States, No. 22-10, 2023 LEXIS 2420, at *136, *151 (U.S. June 8, 2023) (using the canon of noscitur a sociis to determine the meaning of "uses" based on the neighboring verbs of "transfers" and "possesses"); see also Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) ("The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often widely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress."); see also Noscitur a sociis, Black's Law Dictionary (10th ed. 2014). 

Thus, while the list of examples in 38 C.F.R. § 4.16(a) is not exhaustive, the Board may nevertheless turn to these examples-family businesses and sheltered workshops-in order to understand the meaning of "protected environment" in the context of awarding a TDIU. The history of sheltered workshops in the United States is helpful in understanding the meaning and context of 38 C.F.R. § 4.16(a). 

Sheltered workshops arose in the United States as early as 1840 when jobs for blind individuals were protected from competition on the open labor market in order to ensure permanent job opportunities for disabled individuals. See Laura C. Hoffman, An Employment Opportunity or a Discrimination Dilemma?: Sheltered Workshops and the Employment of the Disabled, 16 Univ. of Pa. Journal of Law and Social Change, 152, 154 (2013). Sheltered workshops increased in popularity following World War II. Between 1948 and 1976, the number of sheltered workshops in the United States increased dramatically. In 2007, an estimated 136,000 adults with disabilities were employed in sheltered workshops across 42 states. See Alberto Migliore, Sheltered Workshops, International Encyclopedia of Rehabilitation (Ctr. Int'l Rehab. Research Info & Exch. ed., 2010), https://publichealth.buffalo.edu/rehabilitation-science/research-and-facilities/funded-research/center-for-international-rehab-research-info-exchange.html (last visited July 6, 2023).

Sheltered workshops have also historically been characterized by lower wages. The National Industrial Recovery Act (NIRA) provided "a productivity-based sub-minimum wage" for disabled works, offering 75 percent of the minimum wage in sheltered workshops. See William G. Whittaker, Cong. Research Serv., RL 30674, Treatment of Workers with Disabilities Under Section 14(c) of the Fair Labor Standards Act 12, (2005), https://ecommons.cornell.edu/handle/1813/78685 (last visited July 6, 2023). Although NIRA was deemed unconstitutional in 1935, the Fair Labor Standards Act (FLSA), passed in 1938, introduced a certification system allowing for the employment of workers with disabilities at a subminimum wage under Section 14(c). See Whittaker, supra, at 12; see also Field Operations Handbook-Chapter 64, Employment of Workers with Disabilities at Subminimum Wage under Section 14(c), U.S. Department of Labor (Apr. 24, 2018), https://www.dol.gov/agencies/whd/field-operations-handbook/Chapter-64#b64b00. 

Based on the canon of noscitur a sociis and the context of the term "protected environment" in 38 C.F.R. § 4.16(a), the Veteran's employment is not a protected environment because it is not similar to the examples listed in § 4.16(a). There is no indication that the Veteran is related to his employers, nor does he have any other sort of close friendship or relationship with them. The Veteran's employment was also not similar to a sheltered workshop. Nothing in the record suggests that the Veteran was protected from competition in the open labor market because of his disabilities. Furthermore, as an application engineer, his highest gross earnings per month totaled $6,645, amounting to an annual salary of over $67,000. The Veteran's annual salary is also commensurate with the average salary for an application engineer, which appears to be anywhere between $65,771 and $82,134. See Applications Engineer Salary in the United States, Salary.com, https://www.salary.com/research/salary/listing/applications-engineer-salary, (last visited July 6, 2023). 

The Board next turns to the purpose of 38 C.F.R. § 4.16(a). The language of 38 C.F.R. § 4.16 demonstrates that the purpose of a TDIU is to provide veterans with compensation where their service-connected disabilities cause them to be unable to secure or follow a substantially gainful occupation. The regulation does not intend to compensate individuals who are gainfully employed. In allowing a TDIU for an individual, such as this Veteran, who was gainfully employed, the veteran would essentially be compensated twice for the same time period: once in the form of their salary from their employer, and a second time in the form of TDIU benefits from VA. Allowing a TDIU in this case where the Veteran was successfully employed and earning over $65,000 per year for six years is an absurd result that runs contrary to the obvious purpose of 38 C.F.R. § 4.16: to compensate veterans who are unable to work in a meaningful and gainful way due to their service-connected disabilities. See Pub. Citizen v. United States Dep't of Justice, 491 U.S. 440, 453-54 (1989) (quoting Church of the Holy Trinity v United States, 143 U.S. 457, 459 (1892)) ("[F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act."). 

The Veteran and his attorney urge the Board to find that the Veteran's employment as an application engineer was a protected environment because he received accommodations from his employer. In a June 2016 sworn affidavit, the Veteran stated that he would not be able to work in his position as an application engineer but for the accommodations granted to him by his employer. These accommodations include taking another employee with him to work sites to drive and perform physical tasks like climbing ladders and stepping outside of the office for a few minutes to prevent panic attacks. His representative adds that the Veteran's employer "allow[ed] him to only perform certain parts of his job. He would be expected to move often and regularly if not for his bilateral knee condition and his employer allows him to maintain a mostly sedentary employment." The Veteran further stated that he does "not believe that other co-workers in [his] position would be allowed the same accommodations." The Veteran's attorney contends that the Veteran's employer is considered a protected environment under 38 C.F.R. § 4.16(a) because his employer "accommodates his functional limitations caused by his service-connected conditions." He argues that the accommodations provided to the Veteran change the essential functions of his position. 

The Board rejects the theory that the Veteran's employment as an application engineer constitutes a protected environment because he receives accommodations from his employer. First, the language of 38 U.S.C. § 4.16(a) makes no reference to accommodations; there is nothing in the regulation suggesting that a protected environment exists wherever an employee receives accommodations from his employer. Additionally, Judge Lance's concurring opinion in Cantrell provides guidance in how to interpret the relationship between accommodations and a TDIU. Judge Lance rejects the idea that an employer providing accommodations for an employee's disabilities constitutes a protected environment, writing, "Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer." See Cantrell, 28 Vet. App. at 396 (Lance, J., concurring). 

The accommodations provided to the Veteran here fall within the definition of "reasonable accommodation" under the ADA. Under 42 U.S.C. § 12111(9), "reasonable accommodations" may include, but are not limited to:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The accommodations provided to the Veteran-allowing another employee to accompany him to job sites and allowing him to take breaks when he experiences panic attacks at work-clearly fall within the definition of "reasonable accommodations" under 42 U.S.C. § 12111. The Veteran's job duties were restructured to allow another employee to drive him to job sites and to perform physical tasks, such as climbing ladders, to inspect the job site. The Veteran's work schedule was also modified to allow him to take breaks or leave work when he experienced a panic attack. Such is within the plain language of 42 U.S.C. § 12111. Thus, as the Veteran's employer provided reasonable accommodations that allowed him to successfully perform gainful employment, this case amounts to the situation that Judge Lance cautions against in his concurring opinion in Cantrell. 

Furthermore, no evidence has been provided as to how the accommodations provided to the Veteran "change the essential function of his position," as his attorney argues. The Veteran himself has stated that the essential function of his job as an application engineer is to tabulate estimates for customers who seek to have the company's products installed on their job sites. Although the Veteran is unable to drive to job sites, he is nevertheless still able to visit these sites with the assistance of a co-worker to drive him and perform some of the physical tasks associated with inspecting the job sites, such as climbing ladders. There is no indication that the Veteran is unable to adequately tabulate installation estimates due to his inability to drive and climb ladders at job sites. The essential function of his job has not been changed. 

The Veteran further states that his employer provides accommodations to allow him to take breaks and step outside when he thinks that he is about to have a panic attack. Such also does not change the essential function of his job. The Veteran has not contended, and the evidence does not show, that the Veteran is unable to adequately tabulate installation estimates because he takes breaks throughout the day. 

The Veteran's argument that his employment is in a protected environment because a co-worker assists him in inspecting job sites and he is allowed to take breaks when he has a panic attack again leads to absurd results when extrapolated to other situations where similar accommodations are provided. Many other jobs involve employees assisting one another to perform job tasks. An executive of a large company may have a personal assistant to help schedule and remind him or her of meetings or a chauffeur to drive them to such meetings. Similarly, a partner at a law firm has associate attorneys, paralegals, and legal assistants to help perform research and draft legal documents in order to serve their clients. Such does not amount to a protected environment simply because multiple employees work together to accomplish the tasks required by the employer. It would be an absurd result to find that a company executive or law firm partner was employed in a protected environment in such circumstances. Furthermore, while Federal law does not require employers to provide employees with breaks or rest periods throughout the workday, many employers nevertheless choose to provide their employees with breaks throughout the day. See 29 C.F.R. § 785.18 ("Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee...). It would therefore lead to an absurd result to find that simply allowing an employee to take breaks constitutes a protected work environment, as this is a common attribute of many jobs. 

In sum, the Board finds that, from January 1, 2008 to June 1, 2019, the Veteran was enrolled in college followed by employment in a substantially gainful occupation with an income well above the poverty threshold. Moreover, the Veteran's employment is not considered a protected environment and is therefore not considered marginal. As such, for the reasons and bases discussed, the evidence for the claim versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. The claim for entitlement to a TDIU from January 2, 2008, to June 2, 2019, is denied.

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R.M. Sachs, 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.