Citation Nr: 21066488 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-01 825 DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT 1. The record evidence shows that service connection is in effect for prostate cancer, evaluated as 40 percent disabling effective August 1, 2015, status-post right shoulder surgery, evaluated as 20 percent disabling effective May 10, 2010, degenerative joint disease of the right knee on flexion, evaluated as 10 percent disabling effective April 16, 2013, right shoulder surgical scar, evaluated as zero percent disabling effective March 18, 2002, and for degenerative joint disease of the right knee on extension, evaluated as zero percent disabling effective April 16, 2013; the combined disability evaluation for compensation is 60 percent effective August 1, 2015. 2. The record evidence shows that the Veteran's service-connected disabilities, alone or in combination, do not preclude him from securing and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1972 to April 1975. This appeal has a long procedural history. Most recently, the Board of Veterans' Appeals (Board) remanded this claim to the Agency of Original Jurisdiction (AOJ) for additional development in May 2021. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the AOJ to submit this claim to the Director, Compensation Service (Director), for a decision on the Veteran's entitlement to a TDIU on an extraschedular basis. The Director denied this claim in August 2021 and a copy of the decision is associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran appointed his current attorney to represent him before VA by filing a signed VA Form 21-22a at the Agency of Original Jurisdiction (AOJ) in January 2021. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a TDIU on an extraschedular basis. Contrary to his lay assertions, the most probative evidence of record shows that the service-connected disabilities, alone or in combination, do not preclude him from securing and maintaining substantially gainful employment. The Board notes initially that service connection is in effect for prostate cancer, evaluated as 40 percent disabling effective August 1, 2015, status-post right shoulder surgery, evaluated as 20 percent disabling effective May 10, 2010, degenerative joint disease of the right knee on flexion, evaluated as 10 percent disabling effective April 16, 2013, right shoulder surgical scar, evaluated as zero percent disabling effective March 18, 2002, and for degenerative joint disease of the right knee on extension, evaluated as zero percent disabling effective April 16, 2013. Because the Veteran's combined disability evaluation for compensation is 60 percent effective August 1, 2015, he does not meet the schedular criteria for a TDIU. See 38 C.F.R. §§ 4.16(a)-(b) (2020). The record evidence also does not support granting the Veteran's extraschedular TDIU claim. It shows instead that, although he has not been employed throughout the appeal period, his service-connected disabilities, alone or in combination, do not show that he is precluded from securing or following a substantial occupation. For example, he reported on his VA Form 21-8940 (formal TDIU claim) submitted to VA in April 2021 that he was employed up to 20 hours a week with a private janitorial services company from December 2011 to December 2013. He also reported that his prior employment was as a civilian material handler 40 hours a week at Langley Air Force Base. He left his last job due to his disability. He asserted that all of his service-connected disabilities prevented him from securing or following any substantially gainful employment since December 2011 when he last had worked full-time and became too disabled to work. On a VA Form 21-4192 submitted by the Veteran's most recent employer to VA in May 2021, the private janitorial services company stated that he had been employed from February to July 2007 in general cleaning. His employment was terminated because "the cleaning contract ended." This private employer stated that they no longer had payroll records from this time period for the Veteran. They also stated that he "may have worked 10 to 15" hours per week. The medical evidence also does not support granting the Veteran's extraschedular TDIU claim. Contrary to his lay assertions, it shows instead that his service-connected disabilities, alone or in combination, do not preclude his employability. For example, on VA examination in June 2010, the VA examiner stated that the impact of the Veteran's service-connected right shoulder disability on his "usual occupation is that he cannot do any overhead work" although it had no impact on his daily activities. On VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in March 2014, the VA examiner stated that the functional impact of the service-connected right knee disabilities was difficulty with kneeling, squatting, and going up and down stairs. This examiner also stated that only mild pain was present during range of motion testing of the right knee "with no significant loss of motion during repetitive use." The January 2016 VA knee and lower leg conditions DBQ examiner concluded that the Veteran's service-connected right knee disabilities had no functional impact. With respect to the occupational impact of the service-connected right shoulder disability, the August 2016 VA shoulder and arm conditions DBQ examiner stated, "The Veteran will experience pain and decreased range of motion during exacerbations and overuse; this will affect [his] ability to perform some physical tasks." The November 2017 VA shoulder and arm conditions DBQ examiner found that the Veteran's service-connected right shoulder disability impacted his functional ability. The Veteran reported that right shoulder pain "causes difficulty with holding objects, opening jars, lifting, pulling, & carrying." He was retired. On VA knee and lower leg conditions DBQ in October 2018, the VA examiner concluded that the functional impact of the Veteran's non-service-connected left knee patellofemoral pain syndrome and his service-connected right knee disability (diagnosed as right knee strain) was difficulty with prolonged standing and prolonged walking. On VA shoulder and arm conditions DBQ in October 2018, the VA examiner concluded that the functional impact of the Veteran's non-service-connected left shoulder rotator cuff tendonitis and his service-connected right shoulder disability was difficulty lifting heavy weight overhead with both arms. On VA prostate cancer DBQ in August 2019, the VA examiner concluded that the service-connected prostate cancer had no functional impact. On VA prostate cancer DBQ in February 2021, the VA examiner stated that the functional impact of the service-connected prostate cancer was urinary frequency and incontinence which caused fatigue, decreased focus/concentration, and reduced overall mobility. In a private "TDIU Vocational Assessment Report" dated in March 2021 and submitted to VA in April 2021, Z. T. F., CRC, opined that it was at least as likely as not that the Veteran was not employable as a result of his service-connected right shoulder and right knee disabilities since December 2013. This private rehabilitation counselor also opined that it was at least as likely as not that the Veteran was not employable as a result of his service-connected prostate cancer since July 2014. This counselor stated that he reviewed the Veteran's claims file and conducted an interview with him. He reported what the Veteran stated regarding the occupational impact of his service-connected disabilities. This counselor also discussed the service-connected prostate cancer and what the Veteran reported regarding sleep difficulties due to chronic pain from his service-connected orthopedic disabilities. The Veteran reported that he had been employed until December 2013 as a part-time lead janitor until he stopped working. He also reported his prior employment as a material handler. The private rehabilitation counselor disagreed with prior conclusions reached by VA clinicians concerning the impact of the Veteran's service-connected disabilities on his employability. On VA knee and lower leg DBQ in April 2021, the VA examiner concluded that the functional impact of the Veteran's service-connected right knee disabilities was difficulty with standing or walking for an extended period and an inability to kneel or squat. On VA scars DBQ in April 2021, the VA examiner concluded that the service-connected status-post right shoulder surgical scar had no functional impact on the Veteran. This examiner also concluded that this scar "does not cause occupation[al] functional limitation or otherwise have [an] occupational impact." On VA prostate cancer DBQ in April 2021, the VA examiner concluded that the service-connected prostate cancer had no functional impact on the Veteran. This examiner stated, "There is no functional loss, functional impairment or occupational impact from his [service-connected] prostate cancer [which is] in remission with voiding dysfunction residuals." On VA shoulder and arm conditions DBQ in April 2021, the VA examiner found that the functional impact of the service-connected right shoulder disability was difficulty with lifting and difficulty completing tasks which require reaching overhead. In August 2021, the Director, Compensation Service (Director), concluded that the Veteran was not entitled to a TDIU on an extraschedular basis. The Director noted the Veteran's reported post-service employment history and the reason that his last janitorial job ended. This decision then discussed the occupational limitations experienced by the Veteran as a result of his service-connected right shoulder disability, right knee disabilities, and prostate cancer. Taken together, the record evidence as a whole does not support finding that the Veteran is precluded from securing or maintaining a substantially gainful occupation solely as a result of his service-connected disabilities. It shows instead that, although he stopped working in December 2013 and has not attempted to obtain employment since that time, his service-connected disabilities, alone or in combination, do not preclude his employability. The Board notes here that the Veteran's last date of employment is not clear from a review of the record evidence. Although he reported on his April 2021 VA Form 21-8940 that he was employed as a janitor by a private janitorial services company from 2011 to 2013, this company subsequently informed VA that he had not been employed by them since 2007. More importantly, despite the Veteran's assertion that he left his janitorial job because of his service-connected disabilities, his employer stated that he left his job because the janitorial services contract ended. Multiple VA examiners concluded in January 2016, August 2019, and in April 2021 that the Veteran's service-connected right knee disabilities, prostate cancer, right shoulder surgical scar, and prostate cancer, respectively, had no impact on his employability. Although other VA clinicians who examined him for VA adjudication purposes during the appeal period concluded that his service-connected disabilities impacted his occupational functioning, none of this evidence suggests that he was precluded from employability solely as a result of his service-connected disabilities. The October 2018 VA examiners who found that the Veteran's bilateral knee and bilateral shoulder disabilities caused him to experience certain functional or occupational limitations impermissibly considered the functional impact of both service-connected and non-service-connected disabilities. It is not clear to the Board why these clinicians did not limit their discussion of the functional impact of the Veteran's disabilities to his service-connected disabilities. In any event, the Board finds that the October 2018 opinions concerning the functional impact of the Veteran's bilateral knee and bilateral shoulder disabilities are not probative on the issue of whether he is entitled to a TDIU on an extraschedular basis. The Board acknowledges that a private rehabilitation counselor opined in April 2021 that it was at least as likely as not that the Veteran was not employable as a result of his service-connected right shoulder and right knee disabilities since December 2013 and as a result of his service-connected prostate cancer since July 2014. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board also acknowledges that the April 2021 private rehabilitation counselor's opinion is not medical opinion provided by a medical professional. Nevertheless, this opinion reflects that it is based on what the Veteran (inaccurately) reported concerning his post-service employment history and the symptomatology of his service-connected right shoulder disability, right knee disabilities, and prostate cancer. Thus, this evidence is not probative on the issue of whether the Veteran is entitled to a TDIU on an extraschedular basis. The Board recognizes that the Veteran experiences functional limitations as a result of his service-connected disabilities. As the Director noted in the August 2021 decision, these limitations are reflected in the disability ratings currently assigned for the service-connected disabilities. There is no indication in the competent medical evidence (multiple VA clinician's opinions) that these disabilities, alone or in combination, preclude his employability at any time during the appeal period. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU on an extraschedular basis. In summary, the Board finds that the criteria for entitlement to a TDIU on an extraschedular basis have not been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.