Citation Nr: 20007679 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 14-26 348 DATE: January 29, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1951 to June 1954, March 1958 to March 1962, and from April 1962 to June 1975. This case comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This claim was previously before the Board in September 2019, at which time it was remanded for additional development. TDIU The Veteran has essentially contended that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. 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). 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 her 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’s service-connected disabilities included: (i) residuals of a left ulna fracture (20 percent); (ii) atherosclerotic coronary vascular disease (10 percent); (iii) right shoulder bursitis (10 percent); (iv) bilateral hearing loss (10 percent); (v) tinnitus (10 percent); (vi) left conjunctivitis (0 percent); (vii) cholecystectomy (0 percent); (viii) left inguinal hernia (0 percent); (ix) ventral hernia (0 percent); (x) cholecystectomy scar (0 percent); (xi) hernia scar (0 percent); and (xii) hypertension (zero percent). As the Veteran does not have one service-connected disability rated 40 percent or more, the Board finds that the he does not meet the schedular criteria for TDIU in this matter. However, pursuant to the September 2019 Board remand, the Veteran’s claim was referred to the Director of Compensation Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b) (2016). The Veteran submitted his Application for Increased Compensation Based on Unemployability, VA Form 21-8940 and indicated that he last worked full time in 2007. He completed two years of high school and two years of college, and received additional training in helicopter maintenance, carpentry, and as a policeman. O. S. submitted a statement in April 2012 indicating that he worked as a constable with the Veteran and he was aware of many occasions when he had to leave work for doctor appointments. Before the Veteran retired, these absences became more frequent. G. C. submitted a statement in April 2012 indicating that she worked with the Veteran for 12 years and was at most court proceedings where he worked as a constable and bailiff. Before he retired, G. C. observed the Veteran in a lot of pain, often leaving the courtroom to take medication. She also observed him constantly changing his position as he could no longer sit or stand for extended periods of time. Finally, G. C. recalled the Veteran missing some court dates due to doctor’s appointments. P. P. submitted a statement in April 2012 and indicated that the Veteran complained of constant pain with his back, right shoulder, and knee. There were many times he would have to leave to go to a doctor’s appointment, and he was also limited in some of his job duties as a constable. The Veteran submitted an affidavit in July 2018 indicating that he had not worked in any capacity since retiring as a constable in 2008. The job was largely sedentary in nature and he worked only 12 to 15 hours per week. His hearing loss made it difficult to understand people and his right shoulder disability made it difficult to take notes and write records. The Veteran finally retired because even working part time was becoming too much and he could not effective perform his job due to his service-connected disabilities. A Vocational Assessment was completed in June 2018, and the Veteran expressed that he was unable to work full time because of symptoms associated with his service-connected conditions. The counselor noted that he was unable to perform work duties requiring more than light physical demand due to his coronary vascular disease, he could not lift heavy objected or do overhead lifting due to his left arm and right shoulder conditions, and had difficulty writing with his dominant right hand because of his right shoulder condition. The counselor found that it was more likely than not that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected conditions. It was also noted that he had only performed managerial occupations in law enforcement, but such skills did not transfer to other work that would be consistent with the limitations that the Veteran suffered from due to his service-connected conditions. Pursuant to the September 2019 Board remand, the Veteran’s claim was submitted to the Director of Compensation for an opinion respecting whether the Veteran was unemployable due to his service-connected conditions. In September 2019, the Appeals Management Center considered the available evidence and recommended that the claim be denied. It found that VA treatment reports did not show frequent periods of hospitalizations for any service-connected disability, and the records did not show any such disability prohibited the Veteran from being able to secure or follow a substantially gainful occupation. In November 2019, the Director concurred with the recommendation to deny TDIU on an extraschedular basis. The Board will resolve reasonable doubt in the Veteran’s favor and award entitlement to TDU. Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran’s disabilities is of such nature and severity as to preclude substantially gainful employment. The Director of Compensation hinged her negative opinion on the lack of records showing frequent hospitalizations, but several coworkers submitted competent, credible statements indicating that they observed the Veteran missed work for doctor’s appointments. Furthermore, the Veteran has stated that his disabilities have worsened since he retired, which suggests that his absences would increase if he were able to find work. The Board also finds it significant that the vocational assessment found that the Veteran’s skills would not be transferable to another occupation that would take into account his functional limitations. Therefore, exercising resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence shows that the Veteran is entitled to an award of TDIU. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.