Citation Nr: 18149893 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-30 957 DATE: November 14, 2018 ORDER Prior to December 7, 2015, a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) an extraschedular basis is granted. FINDING OF FACT For the appeal prior to December 7, 2015, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to December 7, 2015, the criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In May 2013, August 2015, and May 2017, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a TDIU prior to December 7, 2015. As noted in the Board’s May 2017 remand, the Veteran’s claim for an increased rating for his bilateral knee disabilities, which was construed as an informal claim for a TDIU, was received on July 30, 2008. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thereafter, his formal application for a TDIU was received on August 21, 2008. In this regard, the Veteran contends that his service-connected disabilities, which include a bilateral knee disability, a right shoulder disability, and scars of the bilateral knees, rendered him unable to secure and follow substantially gainful employment for the appeal period prior to December 7, 2015. In this regard, he reported that his bilateral knee and right shoulder disabilities cause the most functional impact, and preclude employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular 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). See 38 C.F.R. § 4.16(b). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App.447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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). By way of background, in May 2017, the Board found the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for the entire appeal period. Based on such determination, the Board awarded a TDIU as of December 7, 2015, the date he met the threshold schedular criteria, and remanded the appeal period prior to such date for referral to the Director of Compensation Service for extraschedular consideration. While the Director found that an award of a TDIU on an extraschedular basis was not warranted, the Board finds that the Veteran’s service-connected disabilities rendered him unable to secure and follow substantially gainful employment for the entire appeal period. Therefore, a TDIU is warranted on an extraschedular basis for the appeal period prior to December 7, 2015. In this regard, the Veteran last worked in October 2003 as a corrections officer, a position that he held for a year. See May 2015 Application for Increased Compensation Based on Unemployability. Previously, he worked from 1996 until 2000 as a forklift operator and laborer in a textile factory. Id; June 2013 VA Examination. He also reported holding short term positions as a weaver and a cemetery worker. The Veteran began receiving social security disability benefits after he stopped working due to a primary diagnosis of osteoarthritis and allied disorders, and a secondary diagnosis of gout. See August 2007 SSA Disability Determination. Turning to his education, the Veteran reported he has a high school diploma, and some electronics technician training from active service. Thus, the record reflects that the Veteran has a history of performing physical labor, or at least physically active jobs, without a college education. The Veteran underwent VA examinations in August 2007 and March 2009, where both examiners found that he was limited in his activities due to his knee and shoulder disabilities. In this regard, the August 2007 examiner found that such disabilities precluded prolonged standing, walking, and lifting. The March 2009 examiner noted that, in addition to the above limitations, the Veteran could not sit for extended periods of time; his knees would give out while walking; and sudden movements caused a feeling of shoulder dislocation and an inability to raise his arms, or lift or carry anything. The Veteran’s contemporaneous treatment records contain a June 2005 letter for SSA purposes, which notes he has fibromyalgia, ostearthritis of the knees, and patellofemoral syndrome, and he is totally disabled and not able to work for at least a year. A June 2011 letter from a VA physician noted that the Veteran had chronic medical problems, including fibromyalgia, gout, hepatitis C, and gastroesophageal reflux disease, and was probably not able to find and maintain gainful employment. The effects of the Veterans service-connected disabilities were not specifically noted, but also were not specifically excluded. The Veteran then underwent a VA general medical examination in June 2013. At such time, the examiner noted his occupational history, as well as increased pain and limited motion in his shoulder 5 years prior, and opined that his claimed conditions did not preclude him from performing activities with limitations. Specifically, he indicated that the Veteran could safely perform physical work that did not involve overhead pulling or pushing, climbing ladders, lifting more than 25 pounds, or using tools with his right hand. With regard to the Veteran’s knee disabilities, the examiner noted that he could not walk more than 15 minutes an hour, could not sit for prolonged periods, and should not kneel or squat. He finally opined that sedentary work involving use of the hands is not limited. The Veteran then underwent VA examinations for his knees and shoulder in December 2015. With regard to his functional impairment due to his knee disabilities, the examiner opined the sedentary work would require frequent repositioning, and physical work requiring prolonged standing or walking, climbing, kneeling, or squatting would likely result in an increase in symptoms and pose both efficiency and safety considerations. Addressing the Veteran’s shoulder disability, the examiner opined that sedentary work would be permitted. The examiner indicated that work requiring right upper extremity lifting, carrying, pushing, or pulling would likely result in an increase in symptoms and possibly further damage to soft tissue of the right shoulder, as well as increased productivity and safety concerns. As noted above, the Board found the Veteran’s service-connected disabilities rendered him unemployable in a May 2017 decision, and referred the claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. Thereafter, in a May 2017 Memorandum, the Agency of Original Jurisdiction recommended a grant of a TDIU based on the Board’s aforementioned finding and the Veteran’s educational, occupational, and medical history. However, upon a review of the record, the Director of Compensation Service found an extraschedular TDIU was not warranted in a July 2017 decision. The decision relied primarily on the reference to non-service-connected disorders throughout the medical records in the file, with particular emphasis on the June 2011 letter that did not note any service-connected disabilities when opining that the Veteran is probably not able to find or maintain employment. The decision further relied on the opinions of record that indicated that the Veteran could perform sedentary employment. The question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment consistent with his education and employment history due to his service-connected disabilities for the entire appeal period, to include prior to December 7, 2015. Notably, although the opinions of record conclude he could perform sedentary employment, the record does not reflect the Veteran has the training, skills, or experience to secure such employment, or successfully complete the tasks of such employment. Rather, the Veteran only has experience in performing physical labor, or at least physically active jobs, and only has a high school education, which limits the available sedentary employment options. Moreover, the examinations of record indicate that the Veteran cannot sit or stand for extended periods of time, which is inherent in sedentary employment. Such determination is also consistent with the SSA findings. Therefore, based on the analysis above and resolving all doubt in the Veteran’s favor, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation for the entire appeal period stemming from his July 30, 2008, claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, a TDIU on an extraschedular basis for the appeal period prior to December 7, 2015, is warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel