Citation Nr: 21070100 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-19 800A DATE: November 23, 2021 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service from August 1990 to September 1991 and from March 2003 to February 2004. In November 2020, the Board of Veterans' Appeals (Board) denied, in pertinent part, entitlement to a TDIU. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2021 Joint Motion for Partial Remand (JMPR) and Court Order, the Board's decision was vacated and remanded for action consistent with the JMPR. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. Service connection is in effect for left shoulder strain with degenerative joint disease and subacromial bursitis (0% 02/21/2004; 10% 09/17/2009; 20% 08/16/2019); left rhomboid muscle strain (20%); mild medial and patellofemoral compartment arthritis, right knee (10% 02/21/2004); left inguinal hernia, post-surgical repair (0% 09/17/2009); surgical scar, painful motion, post-surgical left inguinal repair (0% 09/17/2009; 10% 04/12/2019); surgical scar, left inguinal hernia (0% 04/12/2019); tinnitus (10% 04/15/2019); and, bilateral hearing loss (0% 04/15/2019). Even in consideration of the higher rating assigned to his left rhomboid muscle strain, the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) are not met for any period contemplated by this appeal. At the Board hearing, the Veteran reported that he stopped working in 2012 due to his shoulder and knee disabilities. 04/12/2019 Hearing Transcript at 9. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a 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 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). An extraschedular TDIU may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extra-schedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). However, "rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). Consideration may be given to a Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In a November 2009 Disabled Veterans Application for Vocational Rehabilitation, the Veteran reported employment as an Assistant Manager at Walgreens. 10/12/2017 VR&E-General at 30. In December 2009, his claim was denied as he did not keep his appointment. Id. at 92. In an August 2010 Disabled Veterans Application for Vocational Rehabilitation, the Veteran reported employment at Walgreens, and reported that he unloads trucks and receives stock. Id. at 21. He declined a vocational rehabilitation appointment due to his current employment. Id. at 70. In a May 2012 Disabled Veterans Application for Vocational Rehabilitation, the Veteran reported employment as an Assistant Manager at Walgreens. Id. at 7. On his resume, he reported employment at Walgreens from 1986, specifically as a Liquor Clerk from 1986 to 1990 and an Assistant Manager from 1990 to the present. Id. at 52. He received a computer literacy certificate in 2000. He has a Commercial Driver's License and Limousine Permit. He has reported 12 years of school and that he obtained his GED. He reported difficulty with lifting heavy objects; off and on pain; and difficulty standing for long periods. Id. at 55. The Rehabilitation Needs Inventory (RN) reflects that he was seeking jobs as a Driver/Supply/Security. Id. at 56. In March 2013, his vocational rehabilitation program was discontinued effective March 8, 2013 because the office was unable to contact the Veteran. Id. at 36. A March 2019 C&P hernia examination reflects the examiner's opinion that the Veteran would be precluded from any job that requires heavy lifting. At the April 2019 Board hearing, the Veteran testified that he worked at Walgreens until he retired in 2012. He testified that he "wanted to try to do 30 years, but I could no longer lift anything; it was hurting me so bad. And, and staying on my feet walking, it, it just was getting to be hired much." He would have continued in the job longer if he did not have shoulder and knee problems. 04/12/2019 Hearing Transcript at 9-10. A May 2019 C&P examination reflects the examiner's opinion that due to his hearing loss driving causes difficulty due to not being able to hear other drivers honking horns, and he has to ask people to repeat, occasionally misunderstanding what is being said. Sometimes his tinnitus gets too loud, and he has difficulty hearing other people. A June 2019 C&P left inguinal hernia examination reflects that the Veteran is limited in his ability to perform any heavy lifting or perform strenuous activities that result in increased abdominal pressure. A September 2019 private treatment record described the Veteran's left shoulder as frozen with restricted range of motion. 10/01/2019 Medical Treatment Record-Non-Government Facility. The October 2019 examination pertaining to the right knee reflects that the Veteran had worked at Walgreens unloading trucks, which was hard on his knees, causing him to retire. He reported a daily pain level of nine out of ten; with "walking and standing activities" that pain level reached a ten out of ten. He reported that this pain could result in an inability to bend his knee at all. With regard to any effect on employment, the examiner noted the Veteran's report that when climbing stairs, he has to stop and rest. The October 2019 examination pertaining to the left shoulder reflects that with regard to any effect on employment, the examiner noted the Veteran's report that he is not able to lift his arm above his shoulder. His shoulder pain reached a pain level of ten out of ten with any increase in activity. He has most difficulty driving his car and with activities requiring use of both arms, household chores preparing meals, cleaning activities, and lifting objects above 10 pounds with the left arm and shoulder. At the October 2019 examination pertaining to the rhomboid muscle injury the Veteran reported difficulty lifting with his left arm. It is noted that the JMPR cites a March 4, 2020 CWT Vocational Note and Addendum but such is not of record; the VR&E records are in an October 2017 entry. On remand, updated VA treatment records for the period from November 4, 2020 must be associated with the claims folder. The Veteran should be requested to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Thereafter, the TDIU matter should be submitted to the Director, Compensation Service, for extraschedular consideration per § 4.16(b). The matter is REMANDED for the following actions: 1. Request that the Veteran complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 2. Associate updated VA treatment records for the period from November 4, 2020. (Continued on the next page) 3. Refer the Veteran's claim for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities (left shoulder strain with degenerative joint disease and subacromial bursitis (0% 02/21/2004; 10% 09/17/2009; 20% 08/16/2019); left rhomboid muscle strain (20%); mild medial and patellofemoral compartment arthritis, right knee (10% 02/21/2004); left inguinal hernia, post-surgical repair (0% 09/17/2009); surgical scar, painful motion, post-surgical left inguinal repair (0% 09/17/2009; 10% 04/12/2019); surgical scar, left inguinal hernia (0% 04/12/2019); tinnitus (10% 04/15/2019); and, bilateral hearing loss (0% 04/15/2019)) preclude the Veteran from participating in gainful employment. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.