Citation Nr: 20004331 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 11-07 620 DATE: January 17, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to May 6, 2014, is denied. FINDING OF FACT The more probative and competent evidence of record preponderates against a finding that the Veteran’s disabilities were of such a nature and severity as to prevent him from securing or following substantially gainful employment prior to May 6, 2014. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating prior to May 6, 2014, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b), 4.25 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to November 1974 and from September 1997 to February 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case is currently under the jurisdiction of the RO in Little Rock, Arkansas. The Veteran later testified before the undersigned at a May 2011 Video Conference hearing. The hearing transcript is of record. In June 2018, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or body that 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 are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, an “extraschedular TDIU” may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. 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). In the process of determining whether unemployability exists for TDIU, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran was service connected for arteriosclerotic heart disease, evaluated as 10 percent disabling from March 1, 2009 to April 28, 2010, and 60 percent disabling as of April 28, 2010; sleep apnea, evaluated as 50 percent disabling as of March 1, 2009; BPH, evaluated as 10 percent disabling from March 1, 2009 to May 24, 2011, 20 percent disabling from May 24, 2011, to May 6, 2014, and as 40 percent disabling as of May 6, 2014; status post left shoulder injury with residuals, evaluated as 10 percent disabling as of March 1, 2009; bilateral plantar fasciitis, evaluated as 10 percent disabling as of March 1, 2009; tinnitus, evaluated as 10 percent disabling from March 1, 2009; gastroesophageal reflux disease, evaluated as 10 percent disabling as of March 1, 2009; left knee degenerative arthritis, evaluated as 0 percent disabling from March 1, 2009 to April 28, 2010, and as 10 percent disabling as of April 28, 2010; carpal tunnel syndrome, right wrist with residual scar, evaluated as 10 percent disabling as of April 28, 2010; carpal tunnel syndrome, left wrist with residual scar, evaluated as 10 percent disabling as of April 28, 2010; lumbar spine degenerative disc disease, evaluated as 10 percent disabling from March 1, 2009 to June 21, 2011, and as 10 percent disabling as of October 1, 2011; left leg radiculopathy, evaluated as 10 percent disabling as of May 6, 2014; left elbow epicondylitis, evaluated as 0 percent disabling as of March 1, 2009; right elbow epicondylitis, evaluated as 0 percent disabling as of March 1, 2009; left wrist tenosynovitis, evaluated as 0 percent disabling as of March 1, 2009; bilateral hearing loss, evaluated as 0 percent disabling as of March 1, 2009; hypertension, evaluated as 0 percent disabling as of March 1, 2009; status post umbilical hernia repair, evaluated as 0 percent disabling as of March 1, 2009; and scar, status post back fusion surgery, evaluated as 0 percent disabling as of June 21, 2011. The Veteran has a 100 percent combined evaluation for his service-connected disabilities, effective from May 6, 2014. Therefore, the issue of entitlement to a TDIU from May 6, 2014, is moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In June 2010, the Veteran received a VA examination for his bilateral plantar fasciitis and the examiner noted that, as a range officer, he was limited to standing and walking for 30 minutes due to the pain in his feet. During a June 2010 VA examination for his knee, the examiner noted that the Veteran’s functional restrictions include limitation in standing, walking, climbing, and squatting. The Veteran received a VA peripheral nerves examination in October 2010 and stated that his restrictions were that his grip was not strong in either hand. However, he could lift, push, or pull five pounds or less. The Veteran worked as a repairman for targets at a firing range and had not had any work restrictions. The Veteran subsequently testified at a Board hearing in May 2011 that he could not sit or stand for extended periods due to his back condition. However, he had not lost any days of work. The Veteran currently worked as a targetry engineer, maintaining automated targetry at a training camp, and his carpal tunnel condition often caused his wrists to go numb and drop things. He started this employment in 2009 and had someone who helped him complete his work. At the May 2014 VA back examination, the examiner noted that the Veteran can care for his yard because he has a riding lawnmower. However, he could not do physical labor. Pursuant to the June 2018 Board remand, a medical addendum was prepared and a VA physician offered an opinion on the impact of the Veteran’s service-connected disabilities on his ability to work prior to May 6, 2014. The physician found that several of the service-connected disabilities had an effect on employment; his impaired hearing would impair him in telephone-dependent jobs, his traumatic arthritis would reduce his endurance for work requiring stair climbing and lifting, his flat feet would cause mild limitation of prolonged walking, and his sciatic nerve neuralgia would impact his ability to do heavy physical labor. The Veteran essentially maintains that his service-connected disabilities rendered him unable to maintain gainful employment prior to May 6, 2014. The Board acknowledges the Veteran’s assertions, but notes that the evidence in this type of claim must indicate that the Veteran is unable to pursue a substantially gainful occupation due solely to his service-connected disabilities. Here, the evidence indicates that the Veteran worked on a firing range maintaining the targeting equipment. Although his disabilities affected his employment, there is no evidence that the Veteran was unemployed or even unable to work. On the contrary, his employer made reasonable accommodations for the Veteran and hired someone to help him fulfill his duties. In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran’s overall service-connected disabilities, unfortunately, the evidence of record simply does not support his claim that they were sufficient to produce unemployability prior to May 6, 2014. Although his service-connected disabilities certainly exhibited a degree of impairment prior to that date, the evidence does not reflect that gainful employment was precluded solely due to them. To the extent the Veteran is limited by his service-connected disabilities, any such limitation was contemplated in, and was being adequately compensated by, the current disability rating assigned for these disorders prior to May 6, 2014. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, Associate Attorney 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.