Citation Nr: 21067795 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 13-27 737 DATE: November 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT Prior to October 18, 2019, the Veteran did not meet the schedular criteria for a TDIU due to service-connected disabilities, and the probative evidence does not reflect that he was unemployable due to service-connected disabilities during the appeal period. 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. § 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to September 1965 and March 1973 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was before the Board in May 2021, when it was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902, 38 U.S.C. § 7107. 1. Entitlement to a TDIU due to service-connected disabilities VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 his age or to the impairment caused by nonservice-connected disabilities. Id. 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). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, 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 service-connected disability, this disability is rated at 60 percent or more, or if there are two or more service-connected disabilities, there is at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran is service-connected for residual scars of the face, nose and right ear due to basal cell carcinoma, squamous cell carcinoma and actinic keratosis, rated as 50 percent disabling throughout the appeal period; lumbosacral strain with lumbar disc herniation, rated as 40 percent disabling from October 18, 2019; residuals of left ankle sprain, rated as 10 percent disabling from June 11, 2012 and 20 percent from December 17, 2019; tinnitus, rated as 10 percent disabling throughout the appeal period; residual scars of the left hand due to squamous cell carcinoma and right deltoid muscle due to lipoma excision, and bilateral hearing loss, each rated as noncompensable throughout the appeal period; allergic rhinitis, rated as noncompensable from May 1, 2020; and radiculopathy of the right and left lower extremity impairment of sciatic nerve associated with lumbosacral strain with lumbar disc herniation, each rated as 10 percent disabling from October 18, 2019 to June 1, 2021, and noncompensable thereafter. The Veteran's combined rating was at most 60 percent prior to October 18, 2019. As the disabilities were distinct body systems from unrelated etiologies, he did not meet the schedular criteria for a TDIU prior to October 18, 2019; however, he met the schedular criteria for a TDIU from October 18, 2019, when his combined rating was 80 percent or higher. See 38 C.F.R. § 4.16(a). In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet the schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. By way of history, in a March 2011 statement, the Veteran raised the issue of a TDIU based on his service-connected residuals of skin cancer and requested referral for extraschedular consideration. In the April 2012 rating decision on appeal, the RO indicated that it did not address the issue of a TDIU because the Veteran did not respond to its April 2011 letter informing the Veteran that he needed to let the VA know if he was claiming individual unemployability and the issue would not be addressed unless he responded. The Veteran appealed the issue of individual unemployability in May 2012. In October 2012, the RO requested that the Veteran submit a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) if he believed he was entitled to a TDIU; the Veteran did not respond to the request. In July 2013, the RO apparently denied entitlement to individual unemployability, indicating the Veteran did not meet the schedular criteria for a TDIU and the case did not warrant submission for extraschedular consideration. However, the discussion was included in the statement of the case for service connection for a psychiatric disorder. In a May 2018 decision, the Board found the issue of TDIU due to his skin cancer was not reasonably raised. In August 2018, the Veteran submitted a Motion for Reconsideration of the Board's May 2018 decision, which was denied in a May 2019 Ruling on Motion for Reconsideration. In November 2020, the Veteran submitted a formal claim for a TDIU (VA Form 21-8940) due to his service-connected back and residual skin cancer disabilities. The Board remanded the matter in November 2020 and May 2021 for further development. In the November 2020 remand, the Board noted that the issue of a TDIU was intertwined with the claim for an increased rating for bilateral hearing loss and was currently being developed by the RO. In June 2021 and August 2021 decisions, the RO denied entitlement to a TDIU. The Veteran asserts, in essence, that entitlement to individual unemployability is warranted because his service connected disabilities markedly interfere with gainful employment. During the October 2017 Board hearing and in statements on appeal, the Veteran stated that prior to 2002, he worked as a financial planner at Morgan Stanley for 17 years, during which time he sold stocks by telephone and face-to-face; that in 2002 while at Morgan Stanley he suffered a relapse in his skin cancer and lost approximately 100 days of worktime in order to undergo skin cancer treatment, such that he was unable to meet his financial targets and was terminated from employment; that he has been unable to rebuild his business to acceptable levels since that time and was unsuccessful finding employment with the major financial companies because the managers knew each other and would not provide a recommendation; that he tried working at several small companies but went out of business after several months because his major clients would not move their money to these smaller companies; that a subsequent position in timeshare telemarketing lasted only a couple of months because he could not hear well enough and was let go; and that he eventually gave up working. See October 2017 Board transcript and March 2011, August 201, September 2013, September 2018 and April 2021 statements. He also asserted that the damage to his face caused by his skin cancer makes it difficult to meet face-to-face with others or work in sales because people tend to focus on the facial scars instead of what he is saying and that if he were to obtain employment it would have to be with the proviso that he could take unplanned sick days throughout the year and "have a face like a diseased lobster on a regular basis." Id. Additionally, the Veteran asserted that his bilateral hearing loss impairs his ability to hear and understand others, including while speaking on the telephone, despite the use of hearing aids; that he has to ask others to repeat themselves; that the only employment that "might be open to him" would be some form of phone solicitation; and that the loss of conduction of sound vibration due to loss of the pinna fold in his right ear due to his skin cancer makes it difficult to capture sounds and understand words, such that he becomes disoriented and is unable to understand what is being said when more than one person is speaking. See October 2017 Board transcript and August 2014, September 2014 and September 2020 statements. The Veteran reported that his left ankle becomes painful when walking long periods, after which he needs to rest before using it again and that it freezes if he sits for any period of time and requires an ankle brace for stability. See October 2017 Board transcript and July 2015 statement. In September 2020, the Veteran stated that he experiences swelling, decreased mobility and constant pain in his left ankle with any type of motion, such that he sits most of the day with his legs elevated to minimize symptoms. The Veteran testified that the residual scars of his left hand are painful when touched and sensitive with activity, such as playing golf. See October 2017 Board transcript. The record shows that the Veteran completed high school before entering service, and that his highest level of education is a master's degree in business administration. It also reflects that the Veteran retired in 1990 after 22 years of military service, qualified for officer flight school and attended school but opted not to graduate with wings, and was commissioned into the supply corps. His military duties included aviation photography, administration, contracts, general supply, stock control and naval exchange. The record does not contain evidence other than the Veteran's hearing testimony and statements on appeal as to his work history. As already noted, the Veteran did not respond to VA's October 2012 request to provide a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). As such, the Veteran did not assist in providing additional evidence to the VA that may have been relevant to his claim. The "duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran did submit a completed VA 21-8940 in November 2020, on which he claimed TDIU due to his back and skin cancer disabilities. He noted that he is unable to work in any capacity or seek and maintain any source of income consistent with his education and background due to his disabilities, as his conditions are permanent and continue to worsen; his skin treatment requires recurring treatment; and his back pain causes him prostrating events which impact his daily living and economics. While he noted he last worked full-time in 2001, he did not list any employers prior to 2001, a period in which he noted he worked as a stockbroker and earned $129,216 per year in 2000. He noted he became too disabled to work in February 2019; worked 30 hours per week for Aon's Universe from 2011 to 2018 as a counselor and earned $1300/month; and worked 30 hours per week for Kelly Services from 2016 to 2019 in administration and earned $540/month. The Veteran stated in April 2021 that Aon's Universe and Kelly Services are no longer open, and he has been unable to contact them. Efforts to obtain employment information from these employers was unsuccessful. The medical evidence shows that the Veteran reported during an April 2012 VA mental health examination for a nonservice connected condition that, following service, he worked for a defense contractor for over 2 years, but business was down, so he left that position to work in the financial field as a stockbroker from 1988 to 2002. He reported that the business downsized due to the economy and 9/11, and he was one of 1000 brokers laid off. He reported the business stole his customers and he sued the company. He reported he remained in the financial industry until 2009, when he left the business due to a "bad manager," after which he sold health and life insurance. He reported he started receiving social security benefits at age 62 and continued to work but that business was slow due to the economy. A February 2021 response from the Social Security Administration (SSA) National Records Center indicates that the Veteran does not receive social security disability benefits. An April 2014 VA treatment record shows the Veteran reported he worked as a stock-broker for 17 years and quit 3 years earlier, worked for 6 different managers and 4 companies. He stated at that time he was trying to sell life and health insurance with only minimal/intermittent success, that the office was shutting down at the end of the month, and he would like to have a job. After reviewing the evidence in the record, the Board finds that the most probative evidence is against entitlement to a TDIU on an extraschedular basis prior to October 18, 2019, and on a schedular basis from October 18, 2019. The Court has interpreted the phrase "substantially gainful employment" to include both an economic component and a non-economic component, specifically whether an occupation produces more than marginal income (economic component) and whether the Veteran is capable of performing the physical and mental acts required by employment (non-economic component). See Ray v. Wilkie, 31 Vet. App. 58, 69 (2019). Regarding the economic component, the Veteran reported he has not been employed full time since 2002, was employed part-time until 2019 and has had no employment income since 2019. However, the VA still must determine whether his service-connected disabilities, without regard to his age, made him incapable of performing the acts required by employment. See Van Hoose, 4 Vet. App. at 363. The probative evidence of record does not support such a finding. With respect to the Veteran's residuals scars of the face and left hand due to skin cancer, VA examiners in December 2012 and December 2020 determined that these disabilities did not impact the Veteran's ability to perform physical and sedentary employments. More specifically, the December 2012 VA examiner explained that the residuals of squamous and basal cell carcinoma and actinic keratosis did not impact employment, as they would not hinder the Veteran's ability to obtain employment requiring physical or sedentary employment. The examiner noted that the approximate total areas of the head, face and neck with hypopigmentation was 19.5 cm, the skin cancer was evaluated every 3 months for reoccurrence and the actinic keratosis was treated with medication a total duration of less than 6 weeks in the past 12 months. The December 2012 VA examiner further indicated that the scars secondary to removal of basal and squamous cell carcinoma and actinic keratosis, while causing disfigurement of the nose and cheek, as shown on photographs, do not impact the ability to work, as the scars would not hinder the Veteran's ability to obtain employment requiring physical or sedentary activity. A December 2020 VA examiner opined that the Veteran's residual scars of the face and disfigurement of the right ear due to basal and squamous cell carcinoma and actinic keratosis and residual scars of the left hand due to squamous cell carcinoma do not impact the Veteran's ability to work. While she noted hypopigmentation of the face and tissue loss to the right ear upper helix due to basal cell carcinoma excision, she indicated that the scars and disfigurement did not limit function or motion. She further determined that the scar of the right deltoid muscle due to lipoma excision measured 3 x 0.1 cm and did not impact the Veteran's ability to work, as the right deltoid muscle scar has healed and was not visible on examination. Additionally, a December 2020 VA examiner opined in an individual unemployability statement that it was at least as likely as not that the Veteran was able to perform the job activities required in a normal 8 hour workday without any restrictions due to his service connected skin disease disabilities. Additionally, January 2013 and December 2019 VA examiners concluded that the service connected residuals of left ankle sprain did not impact the Veteran's ability to work. During the January 2013 examination, the Veteran reported left ankle pain with prolonged use while driving, and with weather changes and treatment of ankle injection; however, the examiner noted the Veteran ambulated without assistive devices. While she noted less movement than normal of the right and left ankle with dorsiflexion and left ankle swelling, there was no weakened movement, excess fatigability, incoordination, pain on movement, deformity, atrophy of disuse, instability of station, disturbance of location, interference with sitting, standing and weight-bearing, or ankylosis. During the December 2019 VA examination, the Veteran reported constant left ankle pain that interferes with sleep, difficulty getting out of a chair, inability to exercise or lift his ankle above the bathtub, cortisone injections once per month, and use of a cane and ankle brace. He described functional loss/impairment as being unable to stand or walk longer than 45 minutes and being unable to exercise. While the examiner noted that pain on examination caused functional loss with dorsiflexion and plantar flexion noted as reduced range of motion, he also noted the Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion, muscle strength was normal, and there was no objective evidence of pain on palpation or weight bearing, crepitus, ankylosis, joint instability, or history of surgery. While the record shows the Veteran reported during February 2013 and February 2021 VA examinations that his bilateral hearing loss and tinnitus impact ordinary conditions of life, including his ability to work, which he described during the February 2013 and February 2021 examinations as having to ask people to repeat themselves and trouble hearing others, during the February 2021 examination, he also reported that his tinnitus had no impact on employment. Moreover, the February 2021 VA examiner found that the Veteran had no functional limitations or restrictions due to his hearing loss for any occupational environment, including all forms of work, to include sedentary employment. He commented that the Veteran's speech discrimination ability was excellent at elevated levels, as long as the Veteran is fit with appropriate amplification. During a February 2020 VA examination, the Veteran reported constant back pain, occasional tingling in the left leg and use of assistive devices and that his back condition impacts his ability to sit, walk and stand for prolonged periods. Examination showed moderate limitation of motion that would inhibit prolonged walking and standing, pain that causes functional loss with forward flexion and extension but not with weight bearing or repetitive use, slightly reduced muscle strength and mild incomplete paralysis of the sciatic nerve. There was no evidence of guarding, muscle spasm, atrophy, or ankylosis, and sensory examination was normal. The use of assistive device was not indicated. A June 2021 VA examiner indicated that the diagnosed lumbosacral strain with lumbar disc herniation affected the Veteran's ability to function in an occupational environment in that the Veteran will be limited if he has to perform activities involving repeated bending, lifting and walking for long periods, but that he may be able to perform sedentary work. The examiner noted the constant use of a cane. A January 2021 VA examiner determined that the diagnosed allergic rhinitis did not impact the Veteran's ability to work. Thus, in light of this evidence, the Board finds that the Veteran was capable of performing the physical and mental acts required of employment consistent with his education and training throughout the appeal period. This determination is based on the Veteran's educational and occupational history, which includes a master's degree in business administration, two decades of employment as a stockbroker, and additional employment in finance, counseling, administration, and sales, which the Board notes are all sedentary occupations, as well as on the preponderance of medical evidence, which shows the Veteran's service connected disabilities do not impact his ability to perform sedentary employment. The Board acknowledges that the Veteran's bilateral hearing loss, tinnitus and lumbar spine disability cause some functional limitations, which the Veteran described as difficulty hearing others, as reported during the February 2013 and February 2021 VA hearing loss examinations, and difficulty performing activities involving repeated bending, lifting, and walking for long periods, as noted on the June 2021 VA spine examination. However, the June 2021 VA examiner found there were no functional limitations or restrictions due to the Veteran's hearing loss for any occupational environment to include sedentary employment; and the June 2021 VA spine examiner determined that the Veteran was capable of performing sedentary employment. Moreover, the December 2020 VA examiner concluded in the individual unemployability statement that the Veteran was able to perform the job activities required in a normal 8 hour workday without any restrictions; and none of the VA examiners who examined the Veteran's residuals scars of the face, nose and ears, residuals scars of the left hand and right deltoid muscle, allergic rhinitis, left ankle or radiculopathy of the bilateral lower extremities determined that these disabilities impacted the Veteran's ability to perform physical and sedentary employment. Thus, while some of the Veteran's disabilities restrict his ability to work to sedentary occupations, the Veteran's skills in business, customer service, sales and administration would allow him to perform employment in a sedentary environment where he is allowed to alternate between sitting and standing and does not involve prolonged sitting, standing, lifting, carrying, or bending. The inability to perform a specific job does not in and of itself warrant a TDIU. While the Veteran asserted that his disabilities related to his history of skin cancer impact his appearance, such that it is difficult to meet face to face in an occupational setting; that he has difficulty hearing over the telephone, such that it is difficult to engage in work requiring use of the telephone; and that it is difficult to maintain employment that would accommodate absences to attend medical treatment, these assertions do not suggest he is unable to perform the physical and mental acts required of employment consistent with his education and background. The Board finds the medical evidence is more probative than the lay statements. Moreover, these assertions are inconsistent with evidence in the record, including some of the Veteran's own statements, suggesting that his prior employment ended due to factors such as the economy and voluntarily, rather than due to service connected disabilities. In sum, while the Board does not doubt that the Veteran's service-connected disabilities have some impact on his ability to work, the record suggests that the Veteran was still working in some capacity prior to 2019, and the preponderance of the evidence does not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions during the appeal period. Accordingly, referral for consideration of entitlement to a TDIU on an extraschedular basis prior to October 18, 2019, and entitlement to TDIU on a schedular basis since October 18, 2019, is not warranted, and the appeal is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). As a final matter, the Board notes that the Veteran's representative provided a post-remand brief in October 2021, which refenced caselaw pertaining to adequacy of examinations. However, no specific examination was identified as inadequate and no fact-specific allegations as to any inadequacy was provided. As no specific errors of fact or law were raised, further discussion on this point is not warranted. See 38 U.S.C. § 7105(d)(5). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.