Citation Nr: 21062311 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-06 323 DATE: October 7, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities did not preclude the Veteran from securing and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from December 1963 to January 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from the April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The Veteran's claims file contains a copy of the transcript. In January 2021, the Board remanded the case for additional evidentiary development; the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). 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 her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The phrase substantially gainful employment has two components: an economic one and a noneconomic one. Ray v. Wilkie, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. §§ 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Discussion The Veteran is service connected for the following disabilities: 1) left lower extremity radiculopathy, at 10 percent from January 24, 2011 and 20 percent from August 23, 2019; 2) L5-S1 spondylolisthesis, at 10 percent from January 24, 2013; 3) limitation of flexion of the left hip, at 10 percent from January 24, 2011; 4) right lower extremity radiculopathy, at 10 percent from January 24, 2011; 5) tinnitus, at 10 percent from May 8, 2018; 6) limitation of extension of the left hip, at a noncompensable rating from January 24, 2011; 7) limitation of flexion of the right hip, at a noncompensable rating from January 24, 2011; 8) thigh, impairment of the left hip, at a noncompensable rating from January 24, 2011; 9) thigh, impairment of the right hip, at a noncompensable rating from January 24, 2011; and 10) bilateral hearing loss, at a noncompensable rating from May 8, 2018. Thus, the Veteran does not meet the schedular requirements for entitlement to a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, the Board will assess whether entitlement to a TDIU is warranted based on an extraschedular basis. 38 C.F.R. § 4.16(b). For the reasons set forth below, the Board finds that the evidence of record does not substantiate that the Veteran was unemployable by reason of his service-connected disabilities alone. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). The Veteran testified that his physician advised him not to work, to lift items, ot to climb. Moreover, the Veteran reported that he has been unable to work for over a decade. Upon a February 2013 VA examination, a clinician indicated the Veteran was limited from vocational tasks involving bending, lifting, prolonged standing, and prolonged walking. The Veteran could maintain employment as long as he had the ability to take intermittent breaks between prolonged periods of sitting. The clinician advised that the Veteran not operate equipment when he took narcotics. This clinician did not indicate that the Veteran's lumbar disorder (and its complication) rendered the Veteran unable to obtain or sustain any gainful employment. Upon a June 2018 VA examination, a clinician noted that the Veteran reported that his niece (with whom he lived) owned several campgrounds, for which the Veteran provided management services. This clinician did not indicate that the Veteran was unable to obtain or sustain any gainful employment. At the August 2019 Board hearing, the Veteran testified that he has worked as a building project manager and superintendent in the home construction industry. The Veteran also testified that he also worked for an automobile manufacturer. He stated that he was able to leave the home, drive an automobile and use some typical office equipment although he did not know much about computers. He no longer used narcotic medication for pain. Lastly, the Veteran stated that he had applied for Social Security Administration (SSA) benefits. In January 2020, VA received a notification from SSA that there were no extant SSA medical records as such had been destroyed. VA has sought to retrieve copies of these SSA records from the Veteran to no avail. See, e.g., February 19, 2020 Final Attempt Letter. In March 2020 correspondence, VA requested that the Veteran complete a new VA Form 8940 to update his status. A review of the claims file fails to show that the Veteran completed and submitted this form to update his status for increased compensation based on unemployability. Upon an August 2020 VA examination, a clinician indicated that the Veteran spine and associated disabilities, as noted with specificity above, did impact the Veteran's ability to work. Specifically, the clinician reported that the Veteran was unable to stand for more that 5-to-10 minutes or walk for any distance. This clinician did not indicate that the Veteran was unable to obtain or sustain any form of gainful employment. Upon an August 2020 VA hip and thigh conditions examination, a clinician indicated that did not functionally impact the Veteran's ability to perform any type of occupational task. Upon a May 2021 VA hip and thigh conditions examination, a clinician indicated that the Veteran's hip disabilities as noted with specificity above, did impact the Veteran's ability to work. Specifically, the clinician reported that the Veteran was unable to run and had decreased tolerance for prolonged bending, lifting, standing, and walking. This clinician did not indicate that the Veteran was unable to obtain or sustain any form of gainful employment. While the Veteran has not reported his educational attainments, the Veteran did attend a correspondence course in drafting and a program in machine drafting and design at a technical college. Professionally, the evidence of record shows that the Veteran has extensive experience in the construction, property management, and automobile industries. Moreover, at the Board hearing, the Veteran indicated that he maintained the ability to drive an automobile (plausibly to and from a workplace). While the Veteran and his representative insist that service-connected disabilities render the Veteran unable to obtain or retain employment consistent with his education and professional experiences, the record shows that the Veteran has a college education and professional expertise in the home construction; property management; and automobile industries, the latter performing manual tasks. The Veteran's technical drafting skills can also be applied in businesses which rely upon expert drafts in advance of any proposed technical and/or construction project. The medical evidence of record, in which the Board places great probative weight, fails to show that any one of the Veteran's service-connected disabilities (of any combination thereof) renders the Veteran unable to obtain or retain substantially gainful employment. In accordance with the Court's holding in Ray, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. Ray, 31 Vet. App. 58. Collectively, the Board finds that this combination of education and work experiences are more than sufficient for the Veteran to obtain and maintain substantial employment considering his specific education and specific work in several professions (to include the multifaceted field of aviation). See Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board recognizes that the Veteran's orthopedic disabilities limit extended standing and walking that prevent manual labor occupations requiring these function as well as heavy lifting. However, they do not preclude occupations performed in an office setting where there is an opportunity for breaks and no extending standing or walking. He does have drafting and management skills that could be employed in job planning, material ordering and control, or customer service. His physical limitations did not rise to the level of rendering the Veteran totally impaired occupationally. Many employers offer reasonable accommodations pursuant to the Americans with Disabilities Act (ADA), to allow for downtime due to disabilities. In the Veteran's case, it would have been feasible for an employer to provide breaks in quiet settings where the Veteran could rest during periods of symptoms associated with his service-connected disabilities. The Veteran does not meet the schedular requirements for entitlement to a TDIU, and the evidence of record fails to reveal that exceptional circumstances exist which warrant consideration under 38 C.F.R. § 4.16(b). Accordingly, the grant of a TDIU on an extraschedular basis is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.