Citation Nr: 20021665 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-02 764 DATE: March 26, 2020 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran is unable to find or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a total disability rating due to individual unemployability (TDIU) have not been met. 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1963 to October 1965. The Board of Veterans’ Appeals (Board) remanded this issue in August 2015 after denying a rating in excess of 20 percent for the Veteran’s left ankle disability. Entitlement to a total disability rating due to individual unemployability (TDIU) VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is to be determined “without regard to the non-service-connected disabilities or [the Veteran’s] age.” Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). Total disability ratings for compensation 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: (1) if there is only one such disability, the disability shall be ratable at 60 percent or more, or (2) if there are two or more service-connected disabilities at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board lacks jurisdiction to award TDIU on an extraschedular basis in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). In this case, however, the Board finds that referral of extraschedular consideration to the Director, Compensation and Pension services is not required, as the weight of the record is against a finding that the Veteran is unemployable by reason of service-connected disability. Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “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.” Id. “TDIU is to be awarded based on the ‘judgment of the rating agency’....” Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is rated at 30 percent disabled, including a 20 percent rating for his left ankle and a 10 percent rating for tinnitus. These ratings do not satisfy the schedular rating requirements for TDIU. Accordingly, the question for the Board is whether an extraschedular TDIU rating is warranted. The Veteran had previously applied for vocational rehabilitation and training at VA. The 2010 assessment found that the Veteran’s disabilities—which have been rated at a consistent level since—impaired his employment due to his restrictions on prolonged walking, climbing, and standing. It also reported that the Veteran had a history as a vocational instructor, headhunter, commercial construction management, director of grounds management, estimating (or bidding) contractor. The assessment concluded that the Veteran had overcome his employment handicaps and did not need VR&E because he could perform “sit-down jobs” such as a bidding contractor, employment headhunter, or teacher. The Veteran’s rehabilitation claim was ultimately denied because it found “that you already have the education, training and experience to qualify for a suitable job.” Between the depth of analysis of the Veteran’s skills, education and training, and the identification of feasible jobs, the vocational assessment weighs strongly against a finding that the Veteran was unemployable in 2010. The question remains, however, whether the Veteran became unemployable at some point after the 2010 assessment. The Veteran’s overall disability level has not increased since the 2010 assessment, which is some evidence that the severity of his disability did not significantly change and weighs against unemployability later. The Board’s August 2015 decision, however, identified two pieces of evidence that it found required the Regional Office to consider TDIU: a July 2011 statement and statements made to an examiner in November 2013. The July 2011 statement ultimately does not weigh significantly in favor of TDIU because it only addressed the Veteran’s preferred occupation, and not all occupations available to him. The Veteran stated that “the type of work I do for a living, construction, has limited me in continued work in that profession. . . . I must be retrained to do another profession . . . .” Although the Veteran discusses the need for additional training, the Board finds that he already had the training necessary for at least some employment, as discussed in the Vocational assessment. The Veteran had previously worked as a headhunter and a bidding contractor, both of which were described as jobs that did not require significant standing or walking. The Veteran may not have been able to work in construction, but other options were still available to him, considering his education and experience. The later November 2013 statement that the Veteran made to the examiner also does not weigh significantly in favor of TDIU, because it was contradicted by the testing of the examination itself, as well as later physical assessments. Although the Veteran reported that he was limited in his occupation because he couldn’t stand, the objective examination noted only weakened movement and pain as functional limitation. The Veteran’s more recent medical records also contradict a finding of inability to stand or walk. Annual evaluations dated March 2014, October 2015, September 2016 and August 2017 reported that the Veteran walked frequently. Earlier March 2014 and September 2015 evaluations noted that the Veteran’s pain was exacerbated by prolonged walking, but this presupposed that he could regularly walk. Considering the November 2013 examination and following physical examinations the Board finds that this is the same situation as described in 2010 and 2011, that is that the Veteran had limitations on prolonged standing that interfered with his ability to work his previous job in construction, but he could still work in jobs with less standing, such as the bidding contractor or headhunter. In addition, the later March 2014, October 2015, September 2016, and August 2017 physical examinations weigh in favor of a finding that the Veteran’s condition with respect to his service connected disabilities had not worsened in the intervening years and he could have performed the tasks needed for the previously mentioned headhunter and bidding contractor. Although the Veteran’s spouse reported in March 2014 that the Veteran had a difficult time walking without a cane or walker, walking without a cane or walker is not required for employment such as a bidding contractor or headhunter. In addition, the spouse did not identify whether his walking difficulties were limited to his ankle. TDIU must be evaluated from the perspective of the service-connected disabilities, but the Veteran also claimed a disability of the right knee. The spouse’s letter does not weigh against the earlier finding that, considering only the service-connected disabilities, the Veteran could perform occupational roles that did not require repeated or prolonged standing. The Veteran also wrote in November 2017 that his left ankle and great toe were now numb. It is not clear whether this numbness was a symptom of the Veteran’s ankle disability as it affected other parts of his body. More importantly, however, it did not describe an additional functional limitation that would have prevented him from working in a sedentary job, such as a bidding contractor or headhunter. Considering the lack of a functional difference, and the lack of later functional limitations being mentioned in his medical records, the statement does not weigh towards TDIU. In sum, the Veteran’s service-connected disabilities, as opposed to his non service-connected disabilities and age, did not render the Veteran unemployable given his skill and experience. The Veteran was experienced and trained in occupations that would be possible with limited mobility and standing such as the bidding contractor and engineering headhunter. Although the Veteran may not have been able to continue his last chosen profession in construction, he was not unemployable such as to warrant TDIU. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.