Citation Nr: 18141096 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 12-21 194A DATE: October 9, 2018 ORDER A total disability rating based on individual unemployability as a result of service connected disabilities on an extraschedular basis prior to December 3, 2009, is denied. FINDING OF FACT The Veteran did not meet the schedular rating criteria for a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU) prior to December 3, 2009; and the Veteran’s service connected disabilities are not shown to have precluded him from either obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to December 3, 2009, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from August 1971 to December 1974. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2016. A transcript of that hearing is of record. In June 2017, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In March 2018, the Court issued an order that vacated the Board decision in part and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR). The JMPR requested that the Board consider the Veteran’s educational attainment and statements about his past experience. It also requested that the Board explain its rationale for concluding that the Veteran could obtain or maintain substantially gainful employment. Finally it explained that the Veteran could supplement his claim, but no additional evidence has been forthcoming since the Board decision. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate 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. Id. In January 2002, the Veteran submitted his TDIU claim. A March 2011 rating decision granted a TDIU effective March 26, 2010. In June 2017, the Board granted a TDIU on an extraschedular basis from December 3, 2009, to March 26, 2010, which was effectuated in a June 2017 rating decision. He asserts that he is entitled to a TDIU prior to December 3, 2009, due to his service connected disabilities. In the JMPR, the parties agreed that the Board provided inadequate reasons or bases for its decision, failed to discuss the impact of all of the Veteran’s service connected disabilities on his ability to maintain substantially gainful employment, and rejected lay evidence of unemployability for the period prior to December 3, 2009. The Board has considered the concerns raised by the JMPR, and will endeavor to address them below. The Board has reviewed the record again, and with attempt to better explain its rationale in this decision, but ultimately, the Board does not find that the evidence supports the award of a TDIU earlier than December 3, 2009. Prior to December 3, 2009, the Veteran was service connected for residuals from a left ankle fracture rated at 40 percent, bilateral hearing loss rated at 10 percent, tinnitus rated at 10 percent, left knee arthritis rated at 10 percent from February 28, 2006, to December 3, 2009, residuals from a right fifth finger fracture rated noncompensable prior to December 14, 2007, and at 10 percent through December 3, 2009, and residuals from left first to fourth metatarsal fractures rated noncompensable outside periods of convalescence. As such, the Veteran did not meet the schedular requirements for a TDIU prior to December 3, 2009. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. As the Veteran did not meet the applicable percentage standards, the Board must consider whether the Veteran was nevertheless unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. See 38 C.F.R. § 4.16(b). After a review of the competent evidence of record, the Board finds a TDIU on an extraschedular basis prior to December 3, 2009, is not warranted. In his January 2002 TDIU application, the Veteran reported that he last worked fulltime in 1996. He indicated that he left his job due to his disabilities. He reported having a tenth grade education. At a September 2006 hearing regarding entitlement to a TDIU, the Veteran testified that he last worked in 1996 or 1997 and received Social Security disability benefits. He testified that he was told that he was unable to return to work in drywall. At the November 2016 hearing regarding an earlier effective date, the Veteran testified that he has not worked since 1998 and had received Social Security disability benefits beginning in 1998. Prior to December 3, 2009, a review of the Veteran’s VA treatment records, taken in total, does not support the conclusion that the Veteran was actually unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities. While the Veteran’s mental health physician reported that he was completely disabled in January 2001, the Veteran is not service connected for an acquired psychiatric disability. Furthermore, the Veteran’s lumbar spine physician reported that he would be unable to return to his previous work in construction. However, the Veteran is also not service connected for a lumbar spine disability. In August 2001, the Veteran was afforded a VA examination for his service connected left ankle. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran was limited to pushing, pulling, lifting, and carrying up to 10 pounds frequently, sitting 2 hours at one time and 6 hours total with the ability to change positions, he should avoid frequent bending, kneeling, stooping, crawling, and crouching, and should avoid walking on uneven surface. In August 2001, the Veteran was afforded a VA examination for his service connected bilateral hearing loss and tinnitus. He reported he tried hearing aids in the past, but could not hear anything in his left ear. The examiner noted that the Veteran had mild hearing loss in the left ear and profound hearing loss in the right ear. The examiner also noted that the Veteran reported tinnitus in both ears. While the examiner did not note any occupational limitations, a later July 2010 VA examiner noted that the Veteran’s bilateral hearing loss and his tinnitus resulted in difficulty understanding speech especially in a group situation. Giving the Veteran every benefit, the Board will consider the July 2010 VA examiner’s statement on the effects of the Veteran’s bilateral hearing loss and tinnitus on his occupation. In May 2004, the Veteran was afforded a VA examination for his residuals from a right finger fracture. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran should avoid moderate gripping, grasping, fine manipulation, vibration, pushing, and pulling with the right hand. In January 2006, the Veteran was afforded a VA examination for his service connected left ankle and residuals from fractures of the left metatarsals. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran should avoid jumping, walking on uneven ground, stooping, and crawling. In February 2007 and May 2007, the Veteran was afforded VA examinations for the service connected left ankle and left knee disabilities. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiners reported that the Veteran was unable to walk or stand for a long time. In April 2008, the Veteran was afforded a VA examination for his residuals from a right finger fracture. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran had moderately reduced right grip strength and was unable to actively use the right fifth finger for gripping activities. As such, prior to December 3, 2009, the medical records show that the Veteran was unable to work due to his mental health disorder and lumbar spine disorder; however, neither of these conditions are service connected disabilities. The Board acknowledges that the Veteran is competent to report symptoms of his service connected disabilities prior to December 3, 2009. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is still not, however, competent to assess whether the symptoms precluded employment. Such competent evidence concerning the nature and extent of the Veteran’s service connected disabilities, and in particular his ability to work, has been provided by a VA medical professional who has examined him. The medical findings directly address criteria under which a TDIU is assigned. The Board finds these records to be have the greatest probative value, and therefore, are accorded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In addition, in adjudicating this claim, the Board must assess not only competency of the Veteran’s statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran most recently reported in his January 2002 TDIU application that he has only a tenth grade education. However, the Board simply does not find the Veteran’s statements to be sufficiently credible for the following reasons. In an April 1972, he reported having an 11th grade education but planned on getting a high school diploma. In October 1976, an educational record shows that he withdrew from college. In November 2000, he reported having a high school education and in September 2000 he reported having two years of college education. These statements are not consistent with his most recent TDIU application and detract from the Veteran’s credibility. The Board finds the contemporaneous statements to be more probative than statements provided more than the more recent statements in his January 2002 TDIU application in connection with a claim for benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Such a conclusion is supported by the fact that the Veteran did not report having only a tenth grade education prior to his January 2002 TDIU application. In fact, he repeatedly reported having a high school education and two years of college, which is consistent with forms from the 1970s showing he had an eleventh grade education and later withdrew from college. As such, the Veteran’s reports of his education level simply is not found to be sufficiently credible to establish that he only has a tenth grade education. However, giving the Veteran every benefit, the Board nevertheless finds that the Veteran is limited to unskilled work, and was prior to December 3, 2009. The Veteran’s service connected disabilities, at most, would have limited him to work that required pushing, pulling, lifting, and carrying up to 10 pounds frequently, sitting 2 hours at one time and 6 hours total with the ability to change positions, no frequent bending, kneeling, stooping, crawling, and crouching, no walking on uneven surface, no jumping, no moderate gripping, grasping, fine manipulation, vibration, pushing, and pulling with the right hand, and working where hearing is needed in group environment. According to the Dictionary of Occupational Titles (DOT), Strength S is equivalent to sedentary work that requires exerting up to 10 pounds of force occasionally (occasionally is equivalent to activity or condition exists up to one third of the time) and/or a negligible amount of force frequently (frequently is equivalent to activity or condition exists from one third to two thirds of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. The DOT explains that sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Finally, the DOT explains that jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. According to the DOT, SVC is Specific Vocational Preparation. SVP is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. This training may be acquired in a school, work, military, institutional, or vocational environment. It does not include the orientation time required of a fully qualified worker to become accustomed to the special conditions of any new job. Specific vocational training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs. Specific vocational training includes training given in any of the following circumstances: Vocational education; apprenticeship training; in-plant training; on-the-job training; and essential experience in other jobs. The following is an explanation of the various levels of specific vocational preparation: Level 1 – short demonstration only; and Level 2 – anything beyond short demonstration up to and including 1 month. The DOT lists a SVP time for each described occupation. Using the skill level definitions in 20 CFR §§ 404.1568 and 416.968, unskilled work corresponds to an SVP of 1 or 2 in the DOT. After a review of the DOT, the Board finds that the Veteran could have obtained and sustained a number of unskilled positions prior to December 3, 2009, consistent with his physical limitations at that time, examples include: Buckle-Wire Inserter (Code 734.687-034, sedentary, SVP 1); Sticker (Code 734.687-090, sedentary, SVP 1); Leaf Tier (Code 529.687-138, sedentary, SVP 1); Film Touch-Up Inspector (Code 726.684-050, sedentary, SVP 2); Charger II (Code 700.687-026, sedentary, SVP 2); and Document Preparer (Code 249.587-018, sedentary, SVP 2). The evidence of record does not establish that the Veteran was actually unable to obtain or maintain substantially gainful employment due to his service connected disabilities prior to December 3, 2009. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. In addition, even considering the Veteran’s work limitations due to his service connected disabilities, there are numerous occupations that the Veteran would have been able to perform prior to December 3, 2009. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service connected disabilities alone were sufficient to produce unemployability prior to December 3, 2009. While the Veteran might not have been able to perform his previous occupation due to limitations from his service connected disabilities along with limitations for nonservice connected disabilities, a TDIU is only warranted when service connected disabilities prevent employment. Here, it simply is not shown that the Veteran’s service connected disabilities, which included residuals from a left ankle fracture bilateral hearing loss, tinnitus, left knee arthritis, residuals from a right fifth finger fracture, and residuals from left first to fourth metatarsal fractures, prevented the Veteran from obtaining or maintaining substantially gainful employment prior to December 3, 2009, examples of which include Buckle-Wire Inserter, Sticker, Leaf Tier, Film Touch-Up Inspector, Charger II, and Document Preparer. Accordingly, a TDIU on an extraschedular basis is not warranted prior to December 3, 2009, and the Veteran’s claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel