Citation Nr: 21073310 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-15 462 DATE: December 8, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) on an extraschedular basis prior to January 25, 2012 is denied. FINDING OF FACT The Veteran did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities presents an exceptional or unusual disability picture productive of marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to January 25, 2012 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from May 1982 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office. In January 2021, the Board last remanded this matter and entitlement to service connection for a left upper extremity disability for further development, to include referral of the TDIU claim to the Director, Compensation Services. The Agency of Original Jurisdiction (AOJ) obtained outstanding VA Medical Center (MC) treatment records, VA peripheral nerves examination, and the Veteran's TDIU application (VA Form 21-8940). The Veteran was notified that FedEx Kinkos and Planet Aid Inc. had not responded to employment information requests and advised that it was his responsibility to ensure VA received the evidence. See e.g., July 22, 2021 Development Letter. The Veteran did not respond. In September 2021, the AOJ granted service connection for the Veteran's radiculopathy of the left upper extremity (claimed as left arm/hand numbness). This represents a full grant of benefits with regard to that claim, and the issue is no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The AOJ also issued a September 2021 Supplemental Statement of the Case for the TDIU issue. Considering the above, the Board finds there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Now the matter before the Board. The Veteran seeks entitlement to TDIU on an extraschedular basis prior to January 25, 2012, contending he left his last place of employment in 2009 due to disability. See April 2021 VA Form 21-8940, TDIU Application. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16 (a). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16 (a)(2). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the period prior to January 25, 2012, the Veteran was service connected for post-operative residuals, left acromioclavicular joint separation with osteoarthritis at 20 percent from October 3, 1989. The Veteran's combined rating did not meet the schedular meet the schedular criteria for TDIU, as his sole disability was rated at 20 percent and the combined disability rating was less than 70 percent. As such, schedular TDIU must be denied. An extraschedular total rating based on individual unemployability 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 under 38 C.F.R. § 4.16 (b). See 38 C.F.R. § 3.321 (b)(1). The Board cannot assign an extraschedular rating in the first instance, see Thun v. Shinseki, 572 F.3d 1366 (2009). However, in this case, the AOJ properly submitted the issue of entitlement to a TDIU to the Director of Compensation Service for extraschedular consideration, and as the issue has already been addressed, the Board will now consider it. In September 2021, the Executive Director of Compensation Service issued an advisory opinion, finding that extraschedular TDIU was not established. Specifically, the opinion noted that the Veteran had a history of non-dominant left shoulder pain with painful and limited motion of the left arm but determined the evidence did not show the impairment would have resulted in total disability that precluded all forms of substantially gainful activity, to include a seated or semi-seated environment. While not bound by the determination of the Executive Director of Compensation Service, the Board likewise concludes that an extraschedular TDIU is not warranted here. The Veteran last worked on a fulltime basis from October 2004 to October 2009 as an operations manager for a recycling/donation company. See April 2021 VA Form 21-8940. On the TDIU application, he reported leaving due to disability and not trying to obtain work since. Id. He completed high school and was classified as a college senior. Further, the Veteran indicated that he did not have any other education or training since becoming too disabled to work. Review of the Veteran's VA medical treatment records reveals the Veteran was seen for his left shoulder in October 2009, shortly after reporting he was fired from his job. See Brooklyn VAMC treatment record, dated October 8, 2009 and October 22, 2009. The Veteran was found to have decreased range of motion and function of the left shoulder and was referred to occupational therapy for four weeks. The Veteran later reported increasing left shoulder pain with trouble sleeping due to pain and believed it was affecting his mood. See January 21, 2010 Brooklyn VAMC treatment record. Significantly, he reported having been recently laid off but continued to do work around the house. Id. During a January 2010 psychology appointment, the Veteran complained of chronic pain in the neck, shoulder, and left arm, noting that the lack of vocational structure and financial strain was exacerbating his pain. See January 29, 2010 Brooklyn VAMC treatment record. In June 2010, the Veteran reported actively looking for work. See June 2010 Brooklyn VAMC treatment record. In August 2011, the Veteran reported that he was not working, his unemployment funds had stopped, and he would be evicted from his apartment in two weeks. See August 30, 2011 Chapel St VAMC treatment record. The Veteran reported homelessness in January 2008. See January 8, 2012 Staten Island VAMC treatment record. Notably, in March 2011 the Veteran was denied a re-admittance into VA vocational rehabilitation and education (VR&E) program, as he was not found to have an employment handicap. See March 2011 VA VR&E Overturn Rehabilitation Determination Letter. The notification letter reveals the Veteran received services that included sponsorship towards computer technology training in 2002-2003 and the purchase of a computer and peripherals. Also, VR&E paid for job placement assistance that let to employment as a manager at a home improvement store. The Veteran had achieved the capacity for competitive employment and was considered successfully rehabilitated in 2003. In the determination letter, upholding the Veteran's rehabilitated status, VR&E noted the Veteran was successfully employed for six years without any reported exacerbation of his service connected conditions. Id. His last employment was as an operations manager, where he oversaw the daily operations of the organization, supervised 10 people, and maintained databases, as well as performed payroll, hiring, firing, and disciplinary actions. Significantly, the Veteran reported being laid off in 2009 due to a downturn in the economy. VR&E found the Veteran did not provide evidence showing his service connected disabilities had worsened to preclude performing duties of the occupation of which he was previously rehabilitated. Considering the above, the Board finds that the evidence supports the findings of the Executive Director of Compensation Service denying a TDIU based upon extraschedular criteria for the period prior to January 25, 2012. Indeed, the Veteran has a long history of left shoulder pain and limited left arm motion that interferes with daily activities. However, the evidence of record however does not show that the interference of the service connected disability alone presents the extraordinary circumstances necessary for an extraschedular TDIU. Further, the Veteran has not submitted any medical opinion regarding any inability to sustain substantial gainful employment due only to the left shoulder disability for the period prior to January 25, 2012. The Board acknowledges that the Veteran is competent to report symptoms of his service connected disabilities, to include pain. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of his disability or to assess whether the symptoms preclude employment. Thus, entitlement to a TDIU, to include on an extraschedular basis, prior to January 25, 2012 must be denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.