Citation Nr: 21071431 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 10-42 337 DATE: November 30, 2021 ISSUE Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), to include extra-schedular consideration. ORDER Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), to include extra-schedular consideration is denied. FINDINGS OF FACT 1. The Veteran does not have a combined evaluation of at least 70 percent with at least one disability evaluated at 40 percent or higher, or a single service-connected disability that has been rated 60 percent or higher during the period at issue, and therefore he does not meet the schedular criteria for a schedular TDIU rating. 2. The evidence of record does not show that the Veteran's service-connected disabilities alone preclude him from obtaining or maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis. CONCLUSION OF LAW The criteria for entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1984 to June 1988. This case comes before the Board of Veterans' Appeals (the Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In December 2013, the Veteran appeared at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. By way of background, the Veteran filed a claim for an increased disability rating for his service-connected left knee disability, which was subsequently denied in October 2009. The Veteran then filed a Notice of Disagreement (NOD) in January 2010. The claim was eventually certified to the Board, and in April 2015 it was remanded for additional development. That development occurred, yet in March 2017 the Board remanded the issue again. In that March 2017 Board remand however, the issue of entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) was raised as part and parcel of the underlying increased ratings claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability). The claims eventually returned to the Board, however in December 2019, the Board remanded only the TDIU claim for further development and adjudication. The claim returned to the Board, but most recently in November 2020, the Board again remanded the Veteran's claim. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), to include extra-schedular consideration. The Veteran has claimed that he is unable to work due to his service-connected disabilities. See December 2013 testimony; see further March 2021 Attorney Memorandum. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. Where the schedular rating is less than total, a total disability rating for compensation purposes may 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service connected for lumbosacral strain at 40 percent disabling; residuals, left knee injury with traumatic arthritis at 10 percent disabling; radiculopathy of the bilateral lower extremities, each at 10 percent disability ratings; tinnitus at 10 percent disabling; and bilateral hearing loss at a noncompensable rating. The Veteran's combined evaluation is 60 percent from March 2016. Therefore, the Veteran does not currently meet the percentage threshold requirements for TDIU for the period on appeal. Having said that, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). Most recently, the Veteran's claim was before the Board in November 2020. In that Decision, the Board remanded the issue of entitlement to TDIU so that the Veteran could be given an opportunity to return the VA Form 21-8940, which is required to determine the Veteran's claim. Following the return of that form, if there was evidence of unemployability, the RO was to refer the Veterans' claim to the Director of Compensation for consideration of an extraschedular TDIU rating. See Bowling v. Principi, 15 Vet. App. 1 (2001). That development took place. See Stegall, Id. The Veteran returned the VA Form 21-8940 in March 2021. The RO then forwarded the Veteran's claim to the Director of Compensation for consideration of an extraschedular TDIU rating. In August 2021, the Director denied entitlement to TDIU on an extraschedular basis. Considering that the Director of C&P has had an opportunity to evaluate the Veteran's claim for extraschedular consideration in the first instance, and since that consideration was denied, extraschedular consideration is now before the Board for the period on appeal. 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Turning to the available evidence, the Veteran's TDIU application, VA Form 21-8940, indicates that he is unable to obtain gainful employment due to his "left knee and back disabilities, hearing loss and tinnitus." The Veteran last worked in March 2014. The application lists that the Veteran's previous positions were as a lead lawn mower mechanic, and his positions prior to that were as automotive mechanics. The Veteran did not indicate that he has tried to obtain other employment since he became too disabled to work. No further job training was listed, but the Veteran did complete four years of a college education. The Veteran was given a hearing before the undersigned in December 2013. Although the Veteran indicated that he was currently working, the Board recognizes that the hearing took place prior to the Veteran leaving his job in March 2014. During the hearing, the Veteran testified that his work had become increasingly difficult due to his service-connected disabilities. He testified that was "doing like heavy equipment mechanic and home repairs ... but I physically couldn't do the work anymore." The Veteran stated that he spent approximately 50 percent of his time doing lawn mower repairs, "and then the other part is paperwork or training." The other jobs he had tried proved "too physically demanding for me." He needed assistance from a coworker to "actually help me lift the heavy things to put the lawn mower back together." The Veteran testified that, at that time, he was able to maintain gainful employment by adapting to the different jobs, but that it was "a hardship all the way around." The Veteran is competent to report that which he experiences, such as his difficulty working, due to his service-connected disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the available medical evidence, the Veteran's claims file contains a VA examination from June 2021. The Veteran was seen in person, and the examiner provided opinions as to the functional impact of the Veteran's service-connected lumbosacral strain, as well as his left knee disability. As it relates to the Veteran's lumbosacral strain, the examiner wrote that there was a functional impact, and that the Veteran would have "pain with any prolonged walking/standing more than 20 minutes continuously," as well as "pain with any lifting, carrying, pushing or puling more than 20 lbs." The examiner wrote that the knee also has a functional impact on the Veteran's ability to perform occupational tasks, because there would be "pain with prolonged walking/standing more than 10 minutes continuously; pain with repetitive kneeling/squatting/climbing stairs or ladders." The Veteran was also given a VA examination in July 2021 to determine the functional impact of his service-connected bilateral hearing loss and his tinnitus. The examiner opined that both disabilities would have a functional impact on his ability to perform occupational tasks. The Veteran stated during the examination that he can "hear, but I don't understand." In the remarks portion of the exam, the examiner wrote that "with the use of safety devices, there would be no functional limitations in an occupational environment." The examiner also wrote that the Veteran's tinnitus has an impact on his ability to work, and the Veteran stated that the "ringing keeps me up at night ... I find it very irritating and frustrating." There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to occupational impact of the Veteran's service-connected disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the evidence does not show that the Veteran's service-connected disabilities render the Veteran unemployable. To begin, the Veteran testified before the undersigned that it was his physical disabilities that prevented him from maintaining employment, as he "physically couldn't do the work anymore." During that same hearing however, the Veteran testified that he was adaptable to different jobs and was able to complete the paperwork and training aspects of the job. The Veteran's VA Form 21-8940 indicates that he has limited job experience outside of the mechanical sector, as he was an automotive mechanic before he became a lawn mower mechanic. Having said that, the Veteran has also completed a four-year college degree. Turning to the medical evidence, each of the Veteran's service-connected disabilities were noted to have an impact on his ability to maintain gainful employment, however the service-connected lumbosacral strain and left knee disabilities only impacted his physical capabilities, such as standing/walking for prolonged periods of time. Neither of those examination reports indicated that the Veteran would be unable to maintain sedentary employment. And while the hearing loss and tinnitus disabilities also pose a functional impact, the examiner did not state that the Veteran would be unable to function in an occupational setting due to those disabilities. Finally, while the Board acknowledges that the Veteran has not been given a VA examination to assess the functional impact of his service-connected bilateral lower extremity radiculopathies, there is no indication that those disabilities would also have anything beyond an impact to the Veteran's physical employment. Overall, the evidence depicts an individual who may find difficulty with physically demanding jobs that require extended walking, standing and/or lifting, but is not absolutely precluded from such work. Having said that, and even recognizing the Veteran's limited job history in the automotive/mechanical sector, the Veteran should nonetheless be capable of sedentary employment. 38 C.F.R. §§ 3.341, 4.16; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). This finding is augmented by the fact that the Veteran testified to being adaptable, being able to complete "paperwork and training aspects" of a job, and that he has completed a four-year college degree. Based on the foregoing, the Board finds that the most credible, competent, and probative evidence of record does not reflect that the Veteran is unable to follow or secure substantially gainful employment due his service-connected disabilities. See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. Neither the Veteran nor his Attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As such, the benefit of the doubt rule is not for application, and the claim of entitlement to TDIU, to include on an extraschedular basis, must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.