Citation Nr: 20003363 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-21 633 DATE: January 14, 2020 ORDER Vacatur of the February 28, 2019, Board Decision denying entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May1986 to March 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). VACATUR The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. Following the Board’s February 18, 2019 Decision denying entitlement to a TDIU, the Veteran submitted a March 2019 Motion for Reconsideration. Along with the Motion, the Veteran submitted VA treatment records, dated November 2018, related to the service-connected lower back condition that he contends is the basis of his claim for a TDIU. As the November 2018 VA treatment records were in the constructive possession of the Board at the time of the February 2019 Decision, but were not considered, the Veteran was potentially denied due process of law. See generally 38 C.F.R. § 20.600. Accordingly, vacatur of the February 2019 Board Decision is warranted. TDIU Entitlement to a total disability rating based on individual unemployability (TDIU) Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). 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) (emphasis added). 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) (2018). In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that the Veteran is service-connected for a back disability evaluated as 20 percent disabling and radiculopathy of the left lower extremity, also evaluated as 20 percent disabling. Therefore, the Veteran's service-connected disabilities do not meet the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a). The Court has held, however, that when a Veteran does not meet the schedular requirements of 4.16(a), then a TDIU rating may be assigned under 4.16(b). While the Veteran does not currently meet the schedular requirements for TDIU, it is necessary to determine whether he is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities on an extraschedular basis. The Veteran has reported that he last worked as a counselor for the Georgia Department of Corrections in December 2008. He has further indicated that his highest level of education is a bachelor’s degree. The Veteran reported that his job as a counselor did not require exertion, such as heavy lifting, other than lifting case files. As a result of the Veteran not meeting the schedular requirements for TDIU, an opinion was sought from the Director of Compensation Service. The Director provided a negative opinion stating that an extraschedular rating is not necessary as the medical evidence did not show that he was unable to follow a substantially gainful occupation due solely to his lower back condition and related neuropathy. The opinion cited the Veteran’s October 2009 grant of Social Security Administration (SSA) benefits, which noted that the Veteran is capable of performing light work with the option to sit and stand, with occasional ability to climb ramps and stairs, crouch, kneel, and stoop. The Board notes that VA is required to consider the SSA's findings. However, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. In this case, SSA considered the Veteran’s diabetes, which is a non-service-connected disability, along with his service-connected disabilities as the primary reason for awarding the Veteran unemployability. However, the law is clear, and it states that only service-connected disabilities may be considered in a claim of entitlement to a TDIU. The Veteran was afforded a VA examination in July 2011. The examiner indicated that the functional effect of the Veteran’s lower back disability was problems with lifting and carrying, increased pain with bending and stooping, and overhead activity that necessitates lumbar extension. The Veteran underwent a VA examination in January 2012. The examiner indicated that the functional impact of the Veteran’s lower back disability was that he was unable to do prolonged standing, walking, or sitting due to pain, and that he was unable to do any lifting due to pain in his lower back. The Veteran was also afforded VA examinations in October 2018. The Veteran’s lower back condition and neuropathy of the lower extremities resulted in limited sitting, standing and walking at one time. The examiner indicated that the Veteran could perform the duties of a desk job. Most recently, the Veteran submitted VA treatment records dated November 2018. The Veteran’s VA physician indicated that the Veteran had been treated since 2007 for chronic low back pain, with a history of a lumbar spine surgery in 2008. His physician further indicated that he had been referred to a specialist for pain management, and currently treats the pain with oral medication. However, the newly submitted VA treatment record does not further address the functional limitations related to his service-connected conditions. (Continued on the next page)   The Board also notes that additional VA treatment records were associated with the claims file in March 2019. However, these records also do not address any functional limitation caused by his service-connected conditions. The Board finds that the weight of the evidence does not support the Veteran’s contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment based on his occupational background and level of education. The Board observes that the Veteran's VA examination reports reflect that his service-connected disabilities do not result in functional impairment that precludes him from obtaining and maintaining substantially gainful employment. While the Veteran has been noted to have issues with prolonged standing, walking, and sitting, the medical evidence of record does not support a finding that the Veteran is unable to participate in any form of gainful employment. The Board finds that the symptomatology associated with the service-connected disabilities is appropriately compensated by the combined 40 percent rating which was assigned. The average impairment in earning capacity in civil occupations is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.