Citation Nr: 21063802 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-16 823 DATE: October 18, 2021 ORDER Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1975 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating by a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2020 decision, while adjudicating the Veteran's claims for increased rating for hernia and other disabilities, the Board found an inferred claim for TDIU reasonably raised by the record, based on the Veteran's contention at his October 2013 VA examination that he had been unemployable due to symptoms related to his service-connected hernia disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded the matter to allow for the Veteran to complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) and for VA to consider whether TDIU was warranted, including, if necessary and warranted, referral to the Director of Compensation Service (Director) for TDIU consideration on an extra-schedular basis under 38 C.F.R. § 4.16(b). A completed VA Form 21-8940 is of record and a February 2021 Supplemental Statement of the Case (SSOC) considered whether referral to the Director for consideration of a TDIU on an extra-schedular basis was warranted. The matter returned again before the Board in May 2021, whereupon it was remanded again to allow for a new VA examination for the Veteran's hernia disability, particularly to determine its current nature and severity and the functional limitations suffered by the Veteran as a result of the disability. Such an examination was provided in June 2021. Thus, the Board finds that VA has met its duties to the Veteran and there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board will now move to adjudicate this claim based on the evidence of record. TDIU Criteria 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. If the schedular rating is less than total, TDIU may still be assigned 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In exceptional circumstances, where a 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). Under 38 C.F.R. § 4.16(b), a showing is required that a veteran's service-connected disabilities have rendered him totally unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The Board is precluded from assigning TDIU on an extraschedular basis in the first instance. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a factual basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, supra. Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In a claim for TDIU, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present," 38 C.F.R. § 4.2). The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the veteran or is in relative equipoise, the veteran will prevail. On the other hand, if the preponderance of the evidence is against the veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a TDIU is denied. The Veteran is currently service-connected for the following conditions: erectile dysfunction, rated at 20 percent effective February 8, 2013; right inguinal hernia, rated at 10 percent effective May 1, 1988; right hydrocele, rated at 10 percent effective February 8, 2013; and right lower extremity scar, rated noncompensable. This amounts to a total combined rating of 40 percent. Thus, the requirements for schedular TDIU are not met as there is neither one disability rated at 60 percent or more, nor are there two or more such disabilities where at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In a VA Form 21-8940 submitted in July 2021, the Veteran indicated that he was unable to obtain and maintain employment due to his hernia, hydrocele (written as "hyrodcell" on document), and mental condition. He also indicated that "he may have cancer now." The Veteran reported that he last worked full-time in September 1979, that the most he earned in one year was $13,000.00 in 1979 and that he was an auto mechanic at that time. He indicated that his past employment included working as an auto mechanic at national repair shop, that he had not worked for 40 years and that he had one year of high school education. The Board considers whether extraschedular TDIU under 38 C.F.R. § 4.16(b) may be availed. Referral to the Director of Compensation under 38 C.F.R. § 4.16(b) is warranted upon a showing that the Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. The Board reviews the record as follows to determine whether referral to the Director is warranted. Treatment records document the Veteran's hernia repair surgeries in the 1970s, and 1980s. The Veteran underwent right hydrocele surgery in 2008 and 2013. A February 2013 treatment note states that the Veteran's hydrocele was only moderate in severity and should not be causing inguinal pain, which the Veteran contended was preventing him from working. The note states that treatment by needle aspiration was offered but the Veteran refused. The note restates that the Veteran's hydrocele could not be the reason for inguinal pain. As noted above, at the Veteran was provided a VA examination in October 2013 for hernia. At the exam, the Veteran stated that he had been unemployable due to symptoms related to his service-connected hernia disability. The examiner noted that the condition limited the Veteran's ability to lift weight. An October 2015 mental health note documents that the Veteran was not employed but was able to work on making improvements to his property. A December 2020 response from the Social Security Administration indicates that there were no medical records associated with the Veteran. Pursuant to the Board's May 2021 remand, the Veteran was provided a VA examination for his hernia disability in June 2021. The Veteran's current symptoms were noted as numbness in his right leg and an inability to walk, sit, or stand for long periods due to numbness, increased pain, and increased swelling. The examiner found that the Veteran's condition impacted his ability to work, but that the Veteran was still able to perform light work and was able to exert up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently. The Veteran was also provided an examination for his erectile dysfunction disability in June 2021, which found that the condition did not cause any restrictions on the Veteran's ability to work. The Veteran's examination for scars also found that the condition did not cause any restrictions on the Veteran's ability to work. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. In this regard, while he did have some limitations such as difficulty sitting, walking, or standing for prolonged periods due to his service connected hernia, the probative medical evidence of record establishes that the Veteran was not rendered completely unable to obtain and maintain gainful employment. The Veteran's erectile dysfunction and scars were found to not place any restrictions on his ability to work; and while the Veteran's hernia was found to cause some limitation, it was not shown to cause to cause an inability to obtain and maintain gainful employment. The record indicates that the Veteran was employed as an auto mechanic. The medical evidence of record shows that the Veteran is able to exert force, lift weights up to 20 pounds, and perform other work. There is no indication that the Veteran is totally rendered unable secure or follow a substantially gainful occupation due to his service-connected disabilities. To the extent that the Veteran has argued that he is unable to work due to his mental condition and/or cancer, the Board notes that service connection has not been awarded service connection for either disability. Thus, extraschedular TDIU under 38 C.F.R. § 4.16(b) is not available and referral to the Director is not warranted. In sum, the cumulative evidence of record indicates that the Veteran's service-connected disabilities are not of sufficient severity to produce unemployability. As such, a TDIU is not warranted. See 38 C.F.R. 4.16. The Board is sympathetic to the limitations suffered by the Veteran as a result of his service-connected disabilities; however such limitations have already been accounted for in the appropriately assigned ratings accorded to each service-connected disability. Thus, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to a TDIU must be denied. 38 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.