Citation Nr: 1623565 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 10-46 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU), to include on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran has unverified active duty from October 1979 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In May 2015 the Board remanded the claim to the AOJ for further development. The requested development as to the claims adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was scheduled for a Travel Board hearing in September 2014. The Veteran failed to appear to the hearing and has not requested to reschedule. The Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(d FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist VA's duty to notify was satisfied by a letter dated January 2011 for entitlement to TDIU. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a Veteran in the development of the claim. That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, private treatment records, relevant VA medical records and VA medical examinations, and the Veteran's own contentions. TDIU The Veteran contends he is unemployable due to service connected disabilities which prelude him from securing and maintaining substantially gainful employment. Specifically, he asserts functional effects from his left shoulder, low back and ulnar neuropathy of the left upper extremity prevents him from working, particularly as a mechanic. See e.g., Veteran's statement received July 8, 2010. After a review of the evidence of record, the Board finds that entitlement to TDIU is not warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. 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)). In this case, service connection is in effect for a left shoulder condition, evaluated at 20 percent disabling; ulnar neuropathy of the left upper extremity associated with the left shoulder condition, evaluated at 10 percent disabling; and degenerative joint and disc disease of the low back, evaluated at 10 percent disabling. The Veteran's combined disability evaluation of 40 percent is insufficient to consider TDIU on a schedular basis. See 38 C.F.R. § 4.25 (2015). Thus, the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met. Id. However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. Therefore, rating boards should submit to the Director of Compensation, for extra- schedular consideration all cases of veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b) (2015). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran's employment history reflects that he stopped working in approximately 2005, and his most recent employment was in automotive repair. The Veteran's work history included positions as a truck driver, mechanic, water district lineman and wood worker/material handler. See SSA records, Form SSA-3368 dated in VBMS as April 1, 2010, pg. 4 or SSA-3367 dated in VBMS as June 13, 2014, pg. 11, 18. The Veteran's educational history indicates that he completed high school. See SSA records, Form SSA-3368 dated in VBMS as April 1, 2010, pg. 3 or SSA-3367 dated in VBMS as June 13, 2014, pg. 10. VA treatment records reflect ongoing treatment for conditions which include obesity, hypertension, mixed hyperlipidemia, anxiety, tobacco dependence, insomnia, recurrent dislocation of the shoulder region joint, low back pain, coronary artery disease and an umbilical hernia (hernia repair conducted in March 2013). The Veteran had left shoulder surgery in February 2009 prior to the appeal period, a Bankart repair. See February 8, 2010 VA progress note. The Veteran received private physical therapy for his shoulder condition after the Bankart left shoulder procedure. See private physical therapist statement dated February 19, 2010, received March 5, 2010. In a February 8, 2010 VA treatment record, the Veteran reported that he could not use his left arm due to pain which limited his ability to work; the VA treating medical professional noted the Veteran was working as a mechanic at that time. Multiple buddy statements were submitted in support of the Veteran's claim. The Veteran's son reported that throughout his life his dad was independent and able to work, conduct every day activities and support his family. Since his [left shoulder] surgery, he was unable to work on vehicles or do any work that required much use of his left arm. His dad's personality also changed after surgery, which he felt was mainly due to financial responsibilities. A relative wrote that the Veteran had been a mechanic in her family for years and he was great. After his surgery he was unable to perform as well and had no strength and was unable to maneuver in unusual positions and situations. See undated handwritten letters dated in VBMS as March 3, 2010. The Veteran's neighbor who knew the Veteran approximately 15 years reported that the Veteran worked for him as a handyman around his home and cabin. He was an excellent mechanic but due to recent injuries was unable to work. See buddy statement dated October 28, 2010. The Veteran's supervisor who employed the Veteran for 20 years as a diesel mechanic and general laborer on odd jobs when necessary also submitted a statement. The Veteran had trouble with his shoulder for quite some time but was able to pop it back into place and move forward with work. Since his surgery in February 2009 the Veteran returned to work but got hurt and he advised the Veteran that the best thing to do would be to stop working before he sustained further injuries. He attempted to return to work off and on but he again was injured and rendered himself unable to perform his duties. The Veteran was hard working, dependable and honest. See buddy statement dated October 31, 2010. In this case, none of the examiners of record, discussed below, have concluded that the Veteran's service-connected disabilities impair him functionally to the point of not being able to obtain some form of substantially gainful employment. In an April 2010 VA shoulder examination, the Veteran reported his usual occupation was a mechanic and he was unemployed 2 to 5 years due to his left shoulder condition. The Veteran's left shoulder condition was noted to impact occupational activities through decreased manual dexterity, problems with lifting and carrying, difficulty reaching, pain and decreased strength. The effects on usual daily activities were none on grooming, feeding and traveling; mild on driving, dressing, bathing and exercise; moderate on chores, shopping, and recreation and severe on sports. The Veteran was not noted to have any limitations on standing or walking. The Veteran reported that he was unable to work in awkward positions or do usual chores, such as replacing a starter. In a February 2011 general medical VA examination, the Veteran's left shoulder and ulnar nerve condition was evaluated. It was again indicated the Veteran was not employed since 2005 with the cause of retirement listed as a left shoulder condition. The left shoulder condition's effect on usual occupation and resulting work problems was that he reported he lost his job due to the condition. The effect on occupational activities was problems with lifting, carrying, decreased strength and pain of the upper extremity. The effects on usual daily activities were that he was unable to perform any heavy lifting or overhead work. Non-service connected conditions of anxiety, hypertension, obesity and insomnia were not noted to have effects on usual occupation or usual daily activities. The VA examiner stated that the Veteran would be prevented from all work requiring heavy lifting, overhead work, climbing or any work required bilateral equal use of his arms. He was not prevented from all sedentary occupations unless they required overhead work or lifting. In a November 2012 VA spine examination, the Veteran's low back condition was indicated to impact his ability to work as self-reported by the Veteran. The Veteran detailed that he was a mechanic and heavy lifting or turning a certain way would cause his back to go out and result in pain. In a May 2013 VA shoulder examination, the Veteran's shoulder condition was indicated to impact the Veteran's ability to work. However, there was no impact on sedentary employment. There was moderate to severe impact with physical employment with activities which require overhead, extended reach, lifting or carrying or climbing due to pain and limited movement. The record indicates the Veteran was granted social security administration (SSA) disability benefits in October 2011, effective September 1, 2010 due to his left shoulder, back and obesity conditions. Although not dispositive for VA purposes, SSA determined that the Veterans shoulder, back and obesity disabilities prevented him from doing past work but did not prevent him from sedentary work involving no more than frequent climbing ramps and stairs; no crawling or climbing ladders, ropes and scaffolds; no pushing, pulling or reaching in any direction with the left upper extremity; no concentrated exposure to extreme cold and wetness; and no more than moderate exposure to vibration or workplace hazards. See SSA notice of decision dated in VBMS as October 19, 2011. In light of the SSA findings, the Board remanded the claim to refer the issue for extraschedular consideration. The VA Director of Compensation determined that the totality of the evidence did now show any extraschedular entitlement to TDIU or that an increased evaluation was warranted. The Director observed that the SSA decision found the Veteran totally disabled due to several disabilities, some not service-connected. He briefly summarized the VA examination findings from February 2011 which indicated that the effect of the left shoulder condition on occupational activities was problems lifting and carrying due to pain; November 2012 which showed a functional impact on occupational activity to be heavy lifting or turning which caused his back to go out; and May 2013 which revealed that the left shoulder had no impact on sedentary activity with moderate to severe impact on physical activity. VA treatment records showed a past medical history for obesity, caffeine disorder, hypertension, anxiety, hyperlipidemia, insomnia, tobacco dependence, and recurrent shoulder dislocation. The director highlighted that the record showed the Veteran with moderate to severe physical limitations due to the left shoulder condition with no impact shown on sedentary activities. The VA examinations were consistent in assessing limited physical and no sedentary restriction to activity. Unemployability had not been shown to be due solely to the left shoulder and no unusual disability picture was shown. As this issue has been considered by the Director in the first instance, the Board now has jurisdiction to consider the issue. Based on the evidence, the Board concludes that a TDIU is not warranted on an extraschedular basis. Although the Board acknowledges that 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 (See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16(a)), it is noteworthy that no medical professional has specifically opined that the Veteran's service-connected left shoulder, left upper extremity ulnar neuropathy and degenerative joint and disc disease of the low back conditions, alone, produce unemployability. In this regard, the VA examinations from April 2010, February 2011, November 2012 and May 2013 indicate that although the Veteran may be restricted in the type of employment he obtains, they do not indicate that he would be functionally impaired to the point of being unable to obtain work at all. The Board acknowledges the Veteran's contentions that he is unable to work due to his service-connected conditions due to problems such as lifting, carrying, reaching and working in "awkward" positions. In addition, the Board observes statements from the Veteran's former employer, friend and family members who have described the Veteran's difficulty working as a mechanic, handyman and general laborer. The Veteran, his relatives, friend and former employer are competent to report their observations. However, the statements do not show that the Veteran's service-connected disabilities preclude him in engaging in substantially gainful employment, as they only address his ability to perform in a non-sedentary capacity. A TDIU rating is not warranted where a veteran is unable to continue a chosen profession. As already noted, the determinative question for purposes of TDIU is whether the Veteran's level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type. Van Hoose, 4 Vet. App. at 363. In summary, the Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disorders or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. Although the VA examinations reflect that the Veteran is incapable of strenuous work, the examinations did indicate the Veteran was capable of sedentary or light duty employment. Aside from the Veteran's contentions, there is no objective evidence indicating that the Veteran's service-connected disabilities render him unable to secure substantially gainful employment. While the Board does not doubt that the Veteran's service-connected disabilities have a significant effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 40 percent rating which is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU, on an extraschedular basis is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs