Citation Nr: 18145789 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-35 528 DATE: October 30, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1979 to January 1982. This appeal originally included a claim of entitlement to service connection for residuals, fracture of the left great toe (to include amputation of the left great toe). That claim was granted during the pendency of this appeal and a 10 percent rating was assigned effective October 21, 2014. Because the Veteran’s claim was granted in full, the issue was not certified as on appeal and is not currently before the Board. The Veteran has waived consideration by the agency of original jurisdiction (AOJ) of the “additional relevant evidence…added to the claims file” since the most recent Supplemental Statement of the Case and has requested adjudication by the Board without further delay. See September 2018 Waiver Letter. The Board may proceed to the merits without remand. 38 C.F.R. § 20.1304(c). 1. Entitlement to a TDIU The Veteran claims that he is entitled to TDIU due to the adverse effects of his service-connected disabilities which have not resulted in a combined evaluation of more than 60 percent at any point during the appeal period. The Veteran specifically alleges that he became too disabled to work on July 1, 2016, the last day he worked full time according to his June 2017 VA 21-8940. The law provides that a total disability rating 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. The Veteran, with a maximum combined 60 percent rating, does not meet the percentage threshold criteria for a TDIU under 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. 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. 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. In determining unemployability for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 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)). Importantly, disability ratings are based on the average impairment in earning capacity resulting from the disability. 38 U.S.C. § 1155; see also 38 C.F.R. § 4.1. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that veteran’s case in a different category than other veterans with an equal rating of disability. Van Hoose, 4 Vet. App at 363. On the Veteran’s June 2017 VA 21-8940, he indicates that he worked as a clerk for the postal service for roughly 34 years. The Veteran discussed his “constant pain and swelling in both knees and lower legs” as well as other service-connected conditions that affect his balance and ability to walk. He stated: “As a result, I was not able to do the requirements of the job I had to leave.” The Board accepts this as a credible statement. Importantly, however, the issue is whether the Veteran is capable of performing the physical and mental tasks required by employment, not required by a particular job. The Board understands that his position with the postal service required standing, walking, and other physical activities which his service-connected disabilities affected. However, as will be discussed, the evidence indicates that the Veteran was capable of sedentary employment. A number of VA examinations have been conducted during the relevant period (July 2016 to the present) addressing the impact on occupational functioning of the Veteran’s service-connected disabilities. His service-connected disabilities include: • left knee (20 percent prior to May 2017; 100 percent from May 2017 to July 2018; 30 percent from July 2018 to the present), • right knee (10 percent throughout the appeal period), • left leg fracture (10 percent prior to February 2017; 100 percent from February 2017 to April 2017; 10 percent from April 2017 to August 2018; noncompensable from August 2018), • left great toe amputation (10 percent), • left hip (noncompensable until June 2017; 10 percent thereafter), • tinnitus (10 percent), • hearing loss (noncompensable), and • multiple other disabilities rated as noncompensable (left ring finger, scars, status post-pilonidal cystectomy). The examiners provided the following opinions with respect to the impact of his service-connected conditions on the Veteran’s occupational functioning. In September 2017, a VA examiner opined that the Veteran “is unable to do a job that requires prolonged weight-bearing.” September 2017 VA Examination (hip and thigh); see also October 2017 VA Examination (spine) (discussing limitations of the non-service-connected spine condition: “The veteran has difficulty with torso agility, bending and lifting over 15 pounds.”). In March 2018, a VA examiner opined that the Veteran’s service-connected disabilities “including the foot condition prevent him from performing a weight-bearing occupation.” However, the examiner stated: “He is able to do sedentary work.” March 2018 VA Examination (foot). Later, in August 2018, the same VA examiner opined that the Veteran “is unable to seek or maintain employment because of the knee and hip conditions as well as multiple health problems.” August 2018 VA Examination (hip and knee); see also August 2018 VA Examination (feet and toes) (same examiner making the same statement). Another VA examiner opined on impact that the Veteran’s hearing loss has on his occupational functioning: “Veteran reports feeling pressure in his head through his ears, and reports intermittent ‘popping noises’ in his ears, which he states began within the past year.” August 2018 VA Examination (audiology) (also opining that tinnitus does not impact occupational functioning). The August 2018 opinion (hip and knees; feet and toes) supports the Veteran’s claim and does not contain language suggesting that he is capable of sedentary employment. The opinion refers to “multiple health problems”, though, rather than specifically to service-connected problems. Notably, the Veteran has quite a few serious non-service-connected medical conditions including a back disability and problems relating to kidney and pancreas transplants. See 2018 Private Treatment Records (discussing serious symptoms relating to kidney problems including generalized weakness, pneumonia, increased dyspnea on exertion, marked fatigue, need for blood transfusion, hypertension, use of immunosuppressants, bacteremia, anemia due to advanced chronic kidney disease, acute renal failure, and anticipated future retransplantation of a kidney). Moreover, other than the Veteran’s tinnitus, all of his service-connected disabilities assigned a compensable rating affect his lower extremities (knees, legs, hips, feet) which significantly affect his ability to perform physical occupations, including his employment that ended in July 2016 and that required standing for prolonged periods and walking, but not the sorts of physical and mental tasks required of sedentary employment. His upper extremities are unaffected, his hearing loss is rated as noncompensable, the audiologist opined that his tinnitus does not affect his occupational functioning. The August 2018 VA examiner’s opinion that the Veteran is unemployable due to “multiple health conditions” does not warrant probative weight with respect to the effect the Veteran’s service-connected conditions have on his employability. There are numerous opinions, however, on the effect his service-connected disabilities have on his occupational functioning which, collectively, strongly indicate that the Veteran is capable of sedentary employment. See September 2017 VA Examination (hip and thigh); March 2018 VA Examination (foot) (opining that the Veteran’s service-connected disabilities “including the foot condition prevent him from performing a weight-bearing occupation”; “He is able to do sedentary work.”); August 2018 VA Examination (audiology) (opining that tinnitus does not impact occupational functioning). The greater weight of the evidence is against finding that the Veteran’s service-connected disabilities prevent him from performing the mental and physical tasks required of sedentary employment which the Board defines as work in an office-like setting, that is primarily performed in the sitting posture, working on the computer, using analytical skills, and completing administrative tasks. See Withers v. Wilkie, No, 16-1543, 2018 U.S. App. Vet. Claims LEXIS 1054 (Aug. 10, 2018). The Veteran’s education and experience are also pertinent to the question of employability. He indicated that he was a clerk who had a high school diploma, but no other training. While the Veteran has a history of performing work that requires some physical tasks and that did not require a high level of education, the evidence does not support finding that, due to education and work experience, he is unsuitable for sedentary employment. Rather, he has extensive experience as a clerk, a high school education, and no physical or mental disabilities that prevent him from performing the sorts of tasks (e.g., communicating by phone or radio, face-to-face communications, writing/typing, etc.) that are required in sedentary employment. The greater weight of the evidence is against finding that the Veteran’s service-connected disabilities (as distinguished from his general state of health) render him unable to obtain and maintain gainful employment. For this reason, referral to the Director, Compensation and Pension Services, is not warranted and the Veteran’s claim of entitlement to a TDIU, on either a schedular or extraschedular basis, is denied.   The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument); September 2018 Correspondence from Representatives (stating that the Veteran “requests that the Board take jurisdiction and decide the appeal on its merits” and otherwise failing to raise any alleged deficiencies with respect to VA’s discharge of its duties to notify and assist); June 2018 Appellant’s Brief (making substantive arguments but failing to raise any issues with respect to the duties to notify and assist). Thus, the Board need not discuss any potential issues in this regard. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel