Citation Nr: 1752712 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-11 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran had active military service from June 1974 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was originally before the Board in July 2014. At that time the appeal was remanded for a VCAA notice. Subsequently, in February 2016 the Board remanded the claim again for additional development. FINDINGS OF FACT 1. The Veteran does not meet the preliminary schedular basis for a TDIU. 2. The evidence of record is against a finding that the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a total rating for compensation purposes based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by a letter dated August 2014. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the duty to assist, the Veteran's service treatment records, Social Security Administration (SSA) records, and VA outpatient treatment records have been obtained. Moreover, the Veteran has been afforded adequate VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claims file includes examination reports specific to the Veteran's claim in March 2008, September 2014, December 2014 and October 2016. The reports are predicated on the Veteran's reported symptoms, clinical records, and clinical examination findings. The reports include clinical examination findings, diagnostic testing, and the Veteran's reported symptoms. The reports provide findings relevant to the matter at issue. Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). The central inquiry in a TDIU claim 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). A total disability rating for compensation may be assigned when the Veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a Veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a Veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2017). In making this determination, the following will be considered one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a) (2017). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of whether a Veteran satisfies the above percentage evaluations. 38 C.F.R. § 4.16 (b) (2017). In such a case, the Board may not assign a TDIU without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet.App. 376, 381 (2013). Analysis The Veteran is service connected for the following conditions: lumbar spine degenerative disc disease with stenosis and intervertebral disc syndrome associated with residual, fracture, left femur (back condition) evaluated at 20 percent disabling effective January 7, 2011 and 40 percent effective April 27, 2015; bilateral lower extremity neuropathy associated with the back condition, right lower extremity evaluated at 10 percent from October 26, 2015 and left lower extremity evaluation at 10 percent from January 7, 2011; chondromalacia patella, left knee associated with residual, fracture, left femur evaluated at 10 percent disabling effective May 5, 2011, 0 percent effective April 2, 2015 and 10 percent effective October 17, 2016 and residual, fracture, left femur at 0 percent disabling effective May 29, 1982. The Veteran's combined rating for his service-connected disabilities is 60 percent or lower for the period on appeal. Thus, the Veteran's ratings do not meet the preliminary schedular criteria for assignment of a TDIU. (The Board notes the RO also reached this conclusion in its Supplemental Statement of the Case of April 2015). Thus, the Board will consider whether TDIU may be considered on an extraschedular basis under 38 C.F.R. § 4.16 (b). TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16 (a). "[T]he central inquiry in determining whether a veteran is entitled to TDIU is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad at 529. Where, as here, the Veteran's service-connected disabilities do not meet the numeric evaluation requirements for TDIU set forth in § 4.16(a), the Veteran may be granted TDIU on an extraschedular basis. 38 C.F.R. § 4.16 (b). Although entitlement to extraschedular TDIU is determined in the first instance by the Director of VA's Compensation Service (Director), the RO and the Board is tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. Id.; see Bowling v. Principi, 15 Vet.App. 1 (2001). That threshold determination must be supported with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). It is the Board, not the examiner that is tasked with determining whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. Geib v. Shinseki, 733 F.3d 1350 (Fed.Cir.2013). The record reflects that the Veteran has not worked since the 1990s. See March 2008 VA Examination report. The evidence shows he has worked as a landscaper, fork lift operator and paver. The evidence shows the Veteran has a high school education and no additional training. The question is whether the Veteran is capable of performing the physical and mental acts required by employment consistent with his education and occupational experience. See Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). The fact that the Veteran has not sustained employment since 1990 is not synonymous with an inability to maintain substantial gainful employment. The Veteran's ratings are recognition that the impairment may make it difficult to obtain and keep employment. The issue is whether the Veteran is unable to follow a substantially gainful occupation as a result of service-connected disabilities, not whether the Veteran can find employment. Id. The Veteran's age and non-service connected disabilities are not for consideration. The Board acknowledges that the Veteran's service-connected disabilities limit his standing, walking, squatting and lifting. See October 2016 VA Examination. The December 2015 examiner also reported that the degenerative disc disease of the lumbar spine would impact employment due to moderate pain and guarding with movement of the spine. However, not every job requires constant standing, walking, lifting or squatting. In addition, the record does not contain any evidence that the Veteran, with his skills and education, is precluded from substantial gainful employment. The competent credible evidence is against a finding that the Veteran is incapable of the physical and mental acts required by employment consistent with his education and skills. For example, there is nothing in the record indicating, or suggesting, that by virtue of his service-connected disabilities, education, and experience, the Veteran would be incapable of employment as a dispatcher or shipping clerk for a trucking company. There is nothing in the record indicating that he would be unable to engage in clerical types of employment. There is nothing in the record to indicate that he could not engage in light assembly, telephone answering, or sales types of employment. Although the veteran was found to be disabled by the Social Security Administration, that decision was based in part on consideration of a non-service-connected mood disorder. The Board finds that, after a review of his service connected disabilities, the Veteran is able to secure or follow a substantially gainful occupation. Although the Veteran is limited physically as a result of his service connected disabilities, the record does not demonstrate that the Veteran could not follow a substantially gainful sedentary occupation. While the Veteran asserts that he is unemployable, the examination reports of record indicate that the Veteran is capable of doing routine tasks that do not involve physical labor. The Board notes that despite the Veteran's physical limitations, it appears from the record that the Veteran could perform seated work. Accordingly, the Board finds, based on the preponderance of evidence, that the Veteran's service-connected disability does not preclude him from obtaining and maintaining substantially gainful employment and does not warrant extra-schedular consideration. Therefore, the Veteran's claim for TDIU is denied. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs