Citation Nr: 21064722 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 11-27 660 DATE: October 21, 2021 ORDER Entitlement to a rating of total disability based on individual unemployability (TDIU) prior to March 4, 2014, is denied. FINDING OF FACT Prior to March 4, 2014, the evidence of record does not show that the Veteran is unable to secure and follow a substantially gainful occupation due to service connected disabilities. CONCLUSION OF LAW The criteria to TDIU prior to March 4, 2014, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to October 1978. This appeal was remanded by the Board in June 2021. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the claim was referred to the Director, Compensation Service for a determination of unemployability pursuant to 38 C.F.R. § 4.16(b) for the period prior to March 4, 2014. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in August 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Entitlement to a rating of total disability based on individual unemployability (TDIU), to include on an extraschedular basis The Veteran contends that the residuals of his service-related appendectomy prevent him from securing and following substantially gainful employment. He has already been granted TDIU for the period since March 4, 2104. Unfortunately, a TDIU rating cannot be granted for the prior to this date. Total disability is considered to exist when there is any impairment which is enough to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). The Board must consider if the Veteran can earn more than a marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Further, the Board should also consider whether given the Veteran's history, education, skill, and training, in conjunction with the Veteran's physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). If there is only one such disability based on which the Veteran contends unemployability, it must be rated at 60 percent or more. If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, the claim period for TDIU begins January 15, 2010, the day the Veteran's increased rating claim for appendicitis was received. During the relevant period on appeal, service connection is established for residuals of appendectomy at 10 percent from January 15, 2010, associated surgical scars at 10 percent from January 15, 2010, and right knee symptoms, at 10 percent from April 26, 1985. During this period, the schedular requirements of 38 C.F.R. § 4.16 (a) are not met. Moreover, the Board determines that prior to March 14, 2014, the Veteran was not unable to secure or follow a "substantially gainful occupation" as a result of service-connected disabilities. Specifically, in his August 2010 application, the Veteran asserted that he was unable to maintain substantially gainful employment due to his knee pain, abdominal pain, and scarring. He reported to his December 2019 examiner that he last worked in 2008 in temporary employment, and that he has not held a full time job since separation from service. The Veteran's employment verification from 2010 indicates that he "voluntarily resigned" in that he failed to show up for work and did not call. The Veteran asserts that prior to March 4, 2014, he was incapable of substantially gainful employment because of his appendectomy residuals. Specifically, prior to and during the period on appeal, he worked in warehouses and temporary assembly line jobs, never working at one job for more than a year, and never earning more than $2,000 a month. The Veteran alleges that he required excessive restroom breaks due to residuals of his service-connected appendectomy, which eventually led to his discontinuing work in 2008. In May 2010, July 2010, February 2014, and February 2018 statements, the Veteran asserts that work not only by right knee pain, but by abdominal pain, itching, burning, and indigestion caused by adhesions from a 1976 appendectomy and 1981 repair surgery. In a July 2011 statement, the Veteran endorses right knee pain, stiffness, swelling, and difficulty with daily activities. In his October 2011 Form 9, the Veteran reiterates his contentions that he feels discomfort, pain, burning, and itching from scars. However, he has not shown that during the appeal period, he was incapable of substantially gainful employment due to service-connected disabilities. The Board does not dispute that the Veteran's gastrointestinal difficulties inhibited employability throughout the period on appeal. However, the difficulties were not caused by solely service-connected disabilities. Indeed, April 2010 and July 2010 allergy and immunology records note a soft, normoactive abdomen. The Veteran, at his April 2010 VA examination, complained of stiffness and burning in the right lower quadrant. He also complained of sporadic nausea and vomiting, as well as intermittent diarrhea and constipation. Nonetheless, the Veteran specifically denied incapacitation. Moreover, the Veteran's July 2010 VA examiner opines that the Veteran's nausea, emesis, constipation, and diarrhea are not residuals of his surgery, "due to expanse of time to the present. Another etiology would have to be entertained if such complaints truly exist." In other words, the examiner opines that the Veteran's second surgery, which occurred in 1981, is too far removed in time to be the sole cause of these symptoms. Rather, the October 2015 VA examiner reviewed the medical record and found no objective evidence of peritoneal adhesions due to appendectomy residuals. May 2017 VA examination reports indicate that the nausea, vomiting, indigestion, and pain to which the Veteran attributes his unemployability, are due to non-service-connected GERD. While the examiner also noted that the Veteran may have intraabdominal adhesions that persisted since his 1981 surgery, which may explain the Veteran's some of the Veteran's symptoms, the record does not indicate enough certainty to find that the Veteran's appendectomy residuals, themselves, produced of unemployability. In fact, the May 2017 VA examiner found that the Veteran's appendectomy scars were stable and not painful. Thus, the evidence does not show that the Veteran's service-connected appendectomy residuals or scars are severe enough to be capable of producing unemployability. In so ruling, the Board is aware of a January 2021 VA examination report indicating that since his surgical intervention, the Veteran has had IBS, pain and discomfort, lesion pain from internal scar tissue, infrequent episodes of diarrhea, lactose intolerance, a spastic colon, acid reflux, and loss of seven teeth due to erosion from acid, nausea, and vomiting. The examiner thus attributed the Veteran's symptoms to "IBS and appendectomy" residuals. However, in light of the Veteran's IBS not being service-connected, and in light of the findings of prior examiners that the Veteran's indigestion, discomfort, and vomiting are more likely results of GERD and other non-service-connected etiologies, the Board concludes that the Veteran's appendectomy residuals and scars, are insufficient, by themselves, to have caused unemployability. Furthermore, the Board notes vocational opinions, to include 2018 and 2021 opinions. The Veteran's March 2018 vocational assessment reiterates constant abdominal pain due to required standing at assembly line jobs, and excessive restroom breaks (10 times a day, 5 minutes each time) assertedly due to appendectomy residuals. The Veteran was never able to work full time, as nausea and cramps affected his concentration and prevented him from completing essential tasks. Interrupted sleep and fatigue due to night restroom use added to concentration issues and fatigue. Because of pain and fatigue, the Veteran mentioned difficulty even following a 30 minute news segment. The assessor thus found the Veteran not capable of sedentary employment because of abdominal pain and unscheduled restroom and lying down breaks. Similarly, the Veteran's March 2021 vocational specialist observed that abdominal pain with nausea and vomiting, as well as right knee pain, combined with depressive symptoms, have significantly impacted attention and concentration. number of breaks and time off would impact pace and production, and not be tolerated by employers, even in sedentary unskilled work. She also notes that attention and concentration further compromised due to sleep impairment causing chronic fatigue, leading to additional off task behavior, which would likely cause difficulty retaining important work information and instructions. Thus, in April 2019 and March 2021 briefing, the Veteran's attorney argued that sedentary employment is precluded. Specifically, he noted that the Veteran's continual pain, stiffness, swelling of right knee makes it difficult to do routine activities. The Veteran, he asserted, would have difficulty engaging in many physical tasks required by sedentary employment, including lifting/carrying, reaching, sitting, standing, walking, bending, twisting, kneeling, stooping, squatting, and climbing. However, that the Veteran would have difficulty with many physical movements does not mean that, prior to March 2014, they were precluded due only to residuals of his appendectomy. As the Veteran's attorney points out, the May 2019 BVA decision granting 10 percent found that appendectomy residuals caused "pain and occasional nausea". The Board thus conceded that appendectomy symptoms "affect" his work. While the Veteran's ability to work may have been affected by pain and nausea caused by continued appendectomy residuals, the appendectomy residuals themselves, to include pain and occasional nausea, are not severe enough to have caused the Veteran's frequent restroom breaks. Rather, any appendectomy residuals acted in concert with non-service-connected GERD and IBS symptoms. As to the Veteran's concentration difficulties, the Board finds that while the Veteran's psychophysical symptoms also compounded his employment difficulties, he was not service-connected for any depressive symptoms during this period. Accordingly, they cannot serve as a basis for any TDIU rating. The August 2021 opinion of the Director of Compensation and Pension confirms these findings. Indeed, the evidence of record does not show that prior to March 4, 2014, service connected conditions would have caused the Veteran to be totally disabled or would have prevented the Veteran from maintain gainful occupational employment. In finding that the Veteran's appendectomy residuals were not related to the Veteran's gastrointestinal complaints, the Director especially noted the observed lack of evidence of peritoneal adhesions related to the history of abdominal surgeries. Thus, she found no functional limitation from the Veteran's appendectomy or scars. In any event, the Board has the ultimate responsibility for determining whether a veteran is unemployable. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran's service-connected residuals of appendicitis complicate the Veteran's occupational functioning. However, they are not capable of rendering him incapable of substantially gainful employment. Accordingly, a rating of TDIU is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia