Citation Nr: 1751809 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 94-31 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to total disability due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel WITNESS AT HEARING ON APPEAL The Veteran INTRODUCTION The Veteran served on active duty in the United States Army from May 1982 to August 1986. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a December 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. A Board hearing has not been requested. In an August 2017 decision, the Board granted service connection for plantar fasciitis and first metatarsal phalangeal joint of both feet and remanded the Veteran's claim for assignment of the appropriate disability rating. It also granted a 10 percent rating for pseudofolliculitis barbae, effective from May 12, 1997. The claim of entitlement to TDIU was intertwined with these issues, and remanded for appropriate development. There has been substantial compliance with the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance"); Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim with respect to the issues now on appeal based on the evidence that is of record. FINDING OF FACT The Veteran's service-connected disabilities alone are not of sufficient severity to produce unemployability. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is claiming entitlement to individual unemployability due to service-connected disability (TDIU). VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment. 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). The Veteran's service-connected disabilities are plantar fasciitis and first metatarsal phalangeal joint arthritis of both feet at 10 percent and pseudofolliculitis barbae at 10 percent with a combined rating of 20 percent. The Veteran does not meet the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). Nevertheless, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. In such cases, rating boards are to submit to the Director, VA Compensation Service, for extraschedular consideration Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards. 38 C.F.R. § 4.16(b). There are basically three reasons why the Board will not refer the Veteran's claim for extraschedular consideration to the Director, VA Compensation Service. First, the evidence of record suggests that the Veteran was consistently working until at least August 2005, despite being service connected for both of his disabilities since December 1995. Second, the Veteran has consistently stated that nonservice-connected disorders, primarily low back pain, preclude employment. This means that the Veteran's service-connected disabilities alone are not of sufficient severity to produce unemployability. Third, the February 2007 VA skin examination states that "the skin examination of the face is normal on todays [sic] examination" and provides no indication that the Veteran is unemployable due to pseudofolliculitis barbae alone. While the Veteran filed an application for increased compensation based on unemployability in December 2000, the evidence of record otherwise suggests that he was able to work until at least August of 2005. A May 2002 VA medical note reads as follows: "he was depressed due to having to come here for many [appointments], having to take of [sic] work to come here." A March 2003 VA psychology record states: "For the last 4 years vet has worked full time as a courier." The Board notes that the Veteran's December 2000 TDIU application indicates that the he last worked full-time in July 1994, and his March 2004 TDIU application indicates that he last worked full-time in 1999. It is not clear why the Veteran filed a second application for TDIU while his original application was still pending. Later statements by the Veteran further support the conclusion that his service-connected disabilities alone are not of sufficient severity to produce unemployability. In a December 2003 personal statement, the Veteran states that he "can't take off of work due to being disable[d]," complains that he will lose "jobs from being unable to work," and indicates that "this country, state city I live in and work in does not have any practice [to] help disabled people" (emphasis added). A December 2003 VA telephone contact indicates that the Veteran "has been having problem [sic] standing on [his feet] at work." After a March 2004 VA dermatology visit, a note was "given for [the Veteran] for work that he cannot shave" (emphasis added). Finally, an August 2005 Barnes Jewish Hospital record reveals that the Veteran "wears back brace when working" and that work includes "lifting refrigerator/stoves, etc." During that appointment, the Veteran was prescribed a "new brace to wear while working." When the Veteran filed his TDIU application in December 2000, he was service-connected for a bilateral foot condition at a rating of 10 percent from December 27, 1995, for pseudofolliculitis barbae at an initial rate of 0 percent from June 9, 1995, and for pseudofolliculitis barbae at a rate of 10 percent from May 12, 1997. But the above records strongly imply that these service-connected disabilities did not preclude him from working from at least the time he filed his claim (he was a full-time courier for the four years prior to his March 2003 VA psychology record) until at least August 2005. This weighs against a finding of entitlement to TDIU. Also weighing against entitlement to a TDIU is the Veteran's consistent testimony that nonservice-connected disorders preclude employability. In his December 2000 TDIU application, the Veteran listed "facial bumps, back injury, [and] feet injury" as preventing him from securing or following any substantially gainful occupation. The Veteran is not service connected for a back disorder; this claim was denied in a January 2010 Board decision that was not appealed. The fact that of the Veteran bases his TDIU application on a back disorder for which he is not service connected weighs against a finding that the Veteran's service-connected disabilities alone are of sufficient severity to result in unemployability. The Veteran's later statements are consistent with this conclusion. In a December 2000 personal statement, the Veteran indicates that he "filed in 1992 for back related problems that keep me from working." In a November 2001 personal statement, he states: "Right now my back, feet, facial bumps are just the beginning of the disabilities I have applied for since I could not work due to these disabilities. Now I have 3 other disabilities that are severe enough to stop working . . . ." According to a June 2003 personal statement, "from basic training feet, facial, back disorders have been keeping me from being employed." In His March 2004 TDIU application, the Veteran lists "back, feet, [right] hand, [right] eye, [shaving] profile" as disorders that prevent him from securing or following any substantially gainful occupation. In a March 2006 letter, the Veteran states that pain in the feet and back is caused by "looking for work," with the majority of the letter focusing on the severity and resulting limitations of the Veteran's back pain. The consistent emphasis that a nonservice-connected back disorder strongly impedes employability is a factor that weighs against entitlement to a TDIU. A February 2007 VA skin examination also weighs against entitlement to TDIU. The Veteran indicates that "he is unable to shave due to the [pseudofolliculitis barbae] bumps," but the examiner states that the Veteran "is on no medication and under no treatment for pseudofolliculitis barbae at the present time and is not using any drugs." The examiner concludes: "the skin examination of the face is normal on todays [sic] examination." There is no indication that pseudofolliculitis barbae contributes to unemployability. These findings also weigh against entitlement to TDIU. In summary, since the filing of his original application, the Veteran has consistently stated that nonservice-connected disabilities, particularly a low back disorder, have contributed to unemployability. There is also evidence that he was regularly employed from the time of the filing of his application until at least 2005. A February 2007 VA skin examination characterizes the Veteran's pseudofolliculitis barbae as normal. The weight of the evidence is against a finding that service-connected disabilities alone are of sufficient severity to produce unemployability. Entitlement to TDIU must be denied. In reaching this conclusion, the Board has considered the Veteran's lay statements that specifically reference pseudofolliculitis barbae as the cause of unemployability. In an April 2003 statement, the Veteran reveals that the inability to shave prohibits the Veteran from working. In March 2004, he states that "facial problems keep[] me from [making] money, and getting employed with other disabilities suffering." In an August 2004 statement, the Veteran notes that shaving is mandatory for the fire department, police department, and R.'s C. S.. In a separate August 2004 statement, the Veteran again indicates that pseudofolliculitis barbae is the cause of his individual unemployability. There are two problems with such statements. First, there is more testimony indicating that nonservice-connected disorders, primarily a back disorder, impact unemployability than there is testimony indicating that pseudofolliculitis barbae alone has resulted in unemployability. Because of this, the greater weight of the evidence is against a finding that pseudofolliculitis barbae alone results in unemployability. Second, the Veteran's personal statements and VA records indicate that the Veteran was employed for much of the time between April 2003 and August 2004, when he submitted his statements that pseudofolliculitis barbae alone prohibited his employment. The Board is basing its decision on evidence submitted after December 2000 and before 2008 because essentially all of the relevant evidence of record was submitted during that time period. According to documents uploaded in August 2016, the Veteran only has ten pages of VA medical records from April 2008 to January 2016, none of which support a finding that the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. No private medical records have been submitted for this same time period. The Veteran's SSA records, which relate to a denial of disability benefits, were uploaded in June 2016, but the overwhelming majority of these records are dated prior to December 2000. Aside from the February 2007 VA skin examination, the only other examination of record is a VA back examination dated April 2008, which provides a negative nexus for the Veteran's back disorder. The Veteran did not file lay statements in the latter part of his appeal that specifically address unemployability. For these reasons, the Board's decision is based on a significant amount of evidence submitted prior to 2008. However, there is no indication that such evidence does not continue to be consistent with the Veteran's current level of impairment related to service-connected disability. This evidence weighs against entitlement to TDIU. Given the overall disability picture and the Veteran's history of employment, the Board finds that the evidence as a whole establishes that the Veteran retains the ability to obtain and maintain employment. Therefore, the Board finds that referral of the claim to the Director, VA Compensation Service, is not warranted. ORDER Entitlement to total disability due to individual unemployability is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs