Citation Nr: 21073760 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 09-09 085 DATE: December 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT A preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 2004 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Board remanded the matter and instructed the RO to refer the Veteran's claim of entitlement to TDIU to the Director of Compensation Services for extra-schedular consideration and readjudicate the claim thereafter. Consequently, the matter was referred to the Director of Compensation Services in August 2021. Thereafter, the RO readjudicated the matter and issued a September 2021 supplemental statement of the case (SSOC), denying the entitlement to TDIU; and returned the matter to the Board for appellate adjudication. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the April 2021 remand. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 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 are rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU should be considered based on the appealed increased rating claim. Id. (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). The Board notes that the Veteran filed a claim of entitlement to TDIU in July 2008, which was denied by the RO in a February 2009 rating decision. The Veteran never appealed this decision, which became final. However, while adjudicating the increased rating claims for bilateral knee and left superficial peroneal nerve disabilities, the Board raised the issue of TDIU as part and parcel of increased rating claims and remanded the matter in April 2016 for further development. The RO denied the entitlement to TDIU in a November 2019 SSOC. The Board remanded the matter again in February 2020 along with granting entitlement to service connection for carpal tunnel syndrome. The RO denied the entitlement to TDIU in a September 2020 SSOC because the Veteran did not file a completed TDIU form 21-8940. Subsequently, the Board remanded the matter again in December 2020 to provide the Veteran another opportunity to file a completed TDIU form. The RO did not receive the completed TDIU form, so the claim was denied again in a February 2021 SSOC. However, the Veteran filed a completed TDIU form in February 2021, therefore, the Board remanded the matter again in April 2021. Pursuant to the April 2021 Board remand, the RO readjudicated and denied the claim of TDIU in the September 2021 SSOC and returned the matter to the Board for appellate adjudication. The Veteran contends that his service-connected disabilities, including disability of bilateral knees, superficial peroneal nerve, carpal tunnel syndrome with right upper extremity neuropathy, have precluded him from securing and following substantially gainful employment. In the February 2021 TDIU claim application, the Veteran reported that his last fulltime job was until September 2020. He also asserted that carpal tunnel, knees condition, and lower leg nerve condition prevent him from securing or following substantially gainful occupation. A TDIU may be assigned, where the schedular rating is less than total, where a veteran 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 schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran has the following disabilities that are service connected: left knee status post arthroscopic surgery (rated 10 percent from May 2, 2007); right knee status post arthroscopic surgery (rated 10 percent from May 2, 2007); mononeuritis of the left superficial peroneus nerve (rated 10 percent from May 2, 2007); and right upper extremity neuropathy/carpal tunnel syndrome (rated 10 percent from August 10, 2007). His combined rating is 40 percent. Based on the forgoing, the Veteran's combined rating is 40 percent, hence, he does not meet the schedular requirement under 38 C.F.R. § 4.16(a). Consequently, entitlement to a TDIU cannot be granted on schedular basis. Nevertheless, 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. Therefore, 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, but who fail to meet the schedular percentage standards. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Since, the Veteran does not meet the schedular criteria for entitlement to a TDIU, the Board remanded the matter in April 2021 to refer the case to the Director, Compensation Services, for extra-schedular consideration. In the September 2021 advisory opinion, the Director found an extra-schedular TDIU was not warranted. The Director explained that the evidence fails to support the contention that any of the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment. The decision of the Director is not binding on the Board and the issue of entitlement to an extraschedular TDIU is reviewed de novo. In the February 2021 VA TDIU Form 21-8940, the Veteran reported that his last full-time job was until September 2020 as an equipment operator, with earnings of $2700.00 per month. The Veteran also reported that previously he worked as a construction worker. As far as education and training are concerned, the Veteran reported that he has two years of college education. He also vaguely reported that he quit his last job because he could not perform the duties required in a safe manner and after each shift injuries were so inflamed that he could not sit or stand and required daily heat treatments. However, the Veteran did not explain whether these injuries are related to his service-connected or non-service-connected disabilities, because the record shows that he has shoulder and back disabilities, which are note service-connected. In a June 2021 correspondence, the Veteran's last employer reported that the Veteran worked as a loader until September 2020 and resigned from the job without giving notice. The Board notes that service treatment records indicate that the Veteran had a knee stress fracture and left knee arthroscopy during his service. A December 2006 report of the Naval Hospital Medical Board reflects that the Veteran continued to have bilateral knee pain with any type of activities, including prolonged standing, running, climbing, squatting, which had prevented him from completing his job as a construction mechanic or meeting the physical fitness requirements set forth by the United States Navy. The March 2008 VA physical therapy treatment record has notation that the Veteran could perform light work, including frequent lifting and carrying 10 pounds. The April 2008 Social Security Administration (SSA) record noted the Veteran's report that he could perform different activities, including cooking, cleaning house, dusting, vacuuming, playing golf, and fishing. The Veteran testified at an August 2009 RO hearing, at which he stated that he was not working and would probably look for an employment in construction work. Regarding the impact of his knee conditions on his activities, the Veteran stated that he put knee braces on both knees when he played golf and had to sit down after 6 blocks of walking. The Veteran's Vocational Rehabilitation and Employment (VR&E) records reflect that he had history of doing different physical jobs as a carpenter and warehouse worker. The November 2009 VR&E record reflects the Veteran was planning to attend Ivy Tech to get his associate degree in computer aided drafting (CAD), then continuing his schooling to get a bachelor's degree. VA awarded him an education award in December 2009. The June 2010, August 2010, and January 2011 VR&E records indicate that the Veteran attended Ivy Tech Community College of Indiana for the program "As Design Technology CAD Design and MFG." The records from SSA reflect that the November 2010 SSA decision did not find the Veteran disabled. Also, the SSA decision noted that the two physicians determined that the Veteran was able to perform work at the less than full range of light exertional level; and might occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. During the August 2013 knee examination, the VA examiner noted the functional impact of the left knee becomes fatigued with strenuous muscle use. During the August 2013 peripheral nerve examination, the VA examiner noted that there was no functional impact of peripheral nerve condition. The September 2013 VA primary care note reflects that the Veteran's work was not physical, and he had knee pain but no leg pain. The October 2013 VA primary care note reflects that the Veteran hurt his right shoulder in September 2013, and he stopped working due to back, shoulder, and knee pain. The February 2015 and June 2015 VA treatment records reflect the Veteran was working part time. The December 2015 VA treatment record reflects the Veteran was working in carpentry. The June 2016 VA knee examination reflects that the Veteran was working as a carpenter. The examiner noted that the Veteran's bilateral knee conditions should not affect his ability to secure and follow substantially gainful occupation that does not require prolonged walking and standing due to knee pain. He should have no difficulty with sedentary occupation. During the June 2016 VA examination for peripheral nerve condition, the examiner did not note any functional impact of the nerve condition. The examiner explained that the Veteran's mild superficial peroneal neuropathy should not impact his ability to secure and follow a substantially gainful occupation since there is no motor deficit of the peroneal nerve. The June 2016 and December 2017 VA treatment records reflect the Veteran was working part time. The Veteran has recently been provided with VA examinations for knee scars, and knee and peripheral nerve conditions; and a medical opinion was obtained in May 2021. The examiner opined that due to his bilateral knee condition, the Veteran would have difficulty with occupations that involve standing on his feet or walking or going up and down stairs or ladders or kneeling or squatting. However, he can perform tabletop sedentary activity. He has difficulty with prolonged standing, walking, sitting, squatting, kneeling and with going up and down stairs or ladders. Regarding functional impact of peripheral nerve condition of right upper extremity and left lower extremity, the examiner opined that the Veteran would not have any difficulty with occupation that involves any activity related to service-connected nerve conditions of right upper or left lower extremity. The Board notes that "sedentary" means "doing or requiring much sitting" or "not physically active." Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary 1687 (32nd ed. 2012). Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the VA adjudicator must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). After reviewing all relevant evidence of record, including the Veteran's statements the Board finds that the Veteran's service-connected disabilities might cause some functional impairment and impact his ability to perform strenuous jobs. However, these disabilities do not seem to preclude all substantially gainful employment for the Veteran based on his educational and occupational history per evidence of record. As noted above, the Veteran has completed two years of college, which is related to computer aided drafting (CAD) as reflected in VR&E records. In the February 2021 TDIU form, the Veteran reported that he worked full time until September 2020. He vaguely asserted that he quit his last job because he could not sit or stand. However, there is no indication whether he tried to look for a light or sedentary job. Hence, the Board finds that the Veteran's service-connected disabilities may preclude employment at the skill level at which the Veteran was previously employed, but the existence of low-skilled occupations where the occasional need to avoid physically demanding tasks has not been contested. The Veteran has not contended nor does the record show that such occupations are not available or do not exist. The fact that a veteran is unemployed or has difficulty finding employment due to service-connected disabilities does not warrant assignment of a TDIU alone, the evidence must show that the Veteran is incapable "of performing the physical and mental acts required" to be employed. Van Hoose, 4 Vet. App. at 363. The preponderance of the evidence is against this specific showing. While the Board has considered the benefit-of-the-doubt standard, there is no affirmative evidence that the Veteran is incapable of substantial gainful employment due to service-connected disabilities alone. See Fagan v. Shinseki, 573 F.3d 1282, 1286-87 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As noted above, the Veteran stopped working due to shoulder and back disabilities as well as due to knee disability. The Board notes that shoulder and back disabilities are not service-connected. However, when the Board only considers the Veteran's service-connected disabilities, the evidence of record does not show that the Veteran is incapable of obtaining and following substantially gainful employment due to service-connected disabilities, considering his education level and work history. Hence, entitlement to a TDIU is denied. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.