Citation Nr: 21071616 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-43 825 DATE: November 30, 2021 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis prior to August 25, 2015 is denied. FINDING OF FACT The evidence of record is against a finding as to whether the Veteran's service-connected disabilities preclude him from securing substantially gainful employment prior to August 25, 2015. CONCLUSION OF LAW The criteria for assignment of a TDIU on an extraschedular basis prior to August 25, 2015 have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.16(b), 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to June 1980 and from September 1988 to January 1992. He testified before the undersigned in April 2019; a transcript of the hearing is associated with the record. The claim was most recently before the Board in May 2021 when it was remanded for further development. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), they still may receive a TDIU on an extraschedular basis if it is determined that they are unable to secure or follow a substantially gainful occupation by reason of their service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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 (1993). The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363. The Veteran was awarded TDIU, effective August 25, 2015. See February 2021 rating decision. As noted in the prior remands, the claim for TDIU has been pending since December 2013. Prior to August 25, 2015, the schedular criteria for TDIU are not met. The Veteran's combined rating was 30 percent from November 2001 and 40 percent from March 2014. 38 C.F.R. § 4.16(a). His service-connected disabilities included varicose veins right leg, evaluated as 10 percent disabling from November 2001; varicose veins left leg, 20 percent from November 2001; tinnitus, 10 percent from March 2014, and; left ear hearing loss and fractures of the right fifth metacarpal and ring finger, each evaluated as noncompensable. Pursuant to a May 2021 remand, the claim was submitted to the Director of the Compensation and Pension Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001); Wages v. McDonald, 27 Vet. App. 233 (2015). In an August 2021 opinion, the Director denied entitlement to TDIU on an extraschedular basis. The initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages, 27 Vet. App. 233, Ray, 31 Vet. App. at 66. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 (b) includes two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray, 31 Vet. App. at 58. As sedentary is defined as doing or requiring much sitting the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1123 (2003). The Veteran contends that his service-connected disabilities, specifically his right hand and bilateral varicose vein disabilities, prevented him from working before August 2015. See January 2014 claim; May 2019 VA Form 21-8940, Application for TDIU. He reported he had a high school education and previous work experience as a cook and bartender, with his last date of employment as December 2011. In April 2014, the Veteran was afforded a VA examination regarding his varicose veins and hand disability. For the Veteran's right hand, he stated that he was in pain and was losing grip strength. During testing, grip strength was normal. The examiner there was no limitation of motion or evidence of painful motion for any finger and no functional loss from his hand. The examiner concluded that the right finger disabilities did not impact his ability to work. On examination of the varicose veins, the Veteran reported that he has leg cramps and sensations of pins and needles and numbness in his legs. The examiner noted palpable and visible venous cords on his left leg; none on his right. The examiner said the Veteran's vascular condition impacted his ability to work as prolonged standing increases lower extremity edema. The examiner further noted that the Veteran had worked as a security guard and cook, without restriction, prior to leaving work. He told the examiner his low back disability was the reason he filed for Social Security disability. The examiner concluded the numbness in the Veteran's legs was more likely due to his non-service-connected back disability with radicular symptomatology. A June 2014 VA examination for tinnitus and left ear hearing included the Veteran's report that he had difficulty without the use of a hearing aid, especially if there is noise in the background, and it is difficult to hear was people say sometimes. The Veteran said the tinnitus interfered with his ability to hear at times. Social Security Administration (SSA) records include a May 2012 determination that the Veteran's disabilities were not severe enough to keep him from working. He had claimed to be disabling because of a back disability, bilateral knee disabilities, left hip, left shoulder and varicose veins. The May 2012 SSA decision was based the decision on opinions from a physician and occupational specialist. In support of the decision, the SSA stated that the Veteran was still able to perform ordinary daily activities and that he had performed sedentary jobs, such as a dispatcher in the past. In an October 2013 decision, an Administrative Law Judge reviewed the record and concluded that the Veteran had not been disabled for SSA purposes from April 2011 (the date the disability allegedly began) through the date of the decision. SSA concluded that the Veteran was capable of sitting for a total of 6 hours and standing or walking for a total of 4 hours. At that time, SSA considered the Veteran's severe impairments as back, both knees, left shoulder and obesity. An October 2016 assessment of the Veteran's ability to do work-related physical activities detailed restrictions due to nonservice-connected disabilities. The only service-connected disability addressed was left ear hearing loss, but no deficit with hearing aid. A November 2016 SSA medical determination found the Veteran to be capable of sedentary work. VA treatment records show the Veteran reported weakness in his hands, citing more weakness in his right, among other medical complaints in February 2015. In April 2015, the Veteran reported ongoing weakness and numbness in his right hand to a VA treating physician. An August 2015 VA Examination indicated that the Veteran's functional impact was that his hand was bothered by prolonged gripping of items. An August 2015 VA Examination for his varicose veins indicate that he was only impacted by the disability with prolonged periods of weight bearing. There are no other medical records during the period prior to August 25, 2015 regarding the Veteran's service-connected varicose vein, tinnitus, left ear hearing loss, and right fifth metacarpal and ring finger fracture residuals. The Board concludes that, prior to August 25, 2015, the Veteran was not unemployable as a result of his service-connected disabilities. Considering his education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers, the Board finds this level of impairment would not preclude employment prior to August 25, 2015. The functional impairment related to his service-connected disabilities (varicose vein, right hand and hearing loss and tinnitus) would not preclude employment during the time period. The VA examinations and records considered by SSA show that his right hand disability did not impact his ability to work. While the Veteran said his leg disabilities made it difficult to stand for long periods of time, the April 2014 VA examiner concluded the leg numbness was more likely related to a back disability; which at that time was not service connected. In detailed examinations considered by SSA, and his claim with SSA, the Veteran attributed his unemployability in large part to disabilities that were not service-connected at the time; specifically his back, knee, left hip and shoulder. The ultimate question of whether a Veteran is capable of substantially gainful employment is a factual one to be determined by the VA adjudicator, and in this case, the Board. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board has considered both the relevant medical evidence as well as the non-medical evidence, including the Veteran's work history and lay statements, as well as the economic and non-economic factors. Based on all the evidence, the Board finds that the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Thus, an extraschedular TDIU prior to August 25, 2015 is not warranted. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.