Citation Nr: 21074743 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-19 942 DATE: December 16, 2021 ORDER Entitlement to a rating of total disability based on individual unemployability (TDIU), to include on an extraschedular basis prior to March 24, 2014, is denied. FINDING OF FACT The evidence of record does not show that the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a rating of total disability based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force, on active duty from August 1967 to March 1989. In a February 2018 decision, the Board of Veterans' Appeals (Board) found that a claim for TDIU had been raised by the record in the course of the Veteran's other claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue of TDIU, pending the outcome of an inextricably intertwined claim. In March 2021, the Board again remanded this claim for further development. Specifically, the Veteran was asked to complete and submit a VA Form 21-9840 (Application for Increased Compensation Based on Individual Unemployability), undergo several VA examinations to determine the extent that his service-connected disabilities affect his ability to work, and obtain a referral from the Director of Compensation Service for extraschedular consideration. Subsequently, the Veteran submitted a TDIU application in March 2021, underwent several VA examinations in August 2021, and the Director issued an advisory opinion in September 2021. Thus, the Board is now satisfied that there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Total Disability Based on Individual Unemployability The Veteran claims that the combined effect of his service-connected bilateral hand arthritis, prostrating headaches, and low back disabilities prevent him from securing and following substantially gainful employment. Specifically, because of his service-connected disabilities, he can no longer work as a mechanic. Despite some difficulty with his hands, the Board finds that the Veteran is not unable to secure and obtain substantially gainful employment due to his service-connected disabilities. Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 (b) contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component requires a determination as to whether a veteran's income exceeds the poverty threshold, as suggested by the Secretary. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. The Court in Ray set forth certain factors that may be appropriate in making such a determination. First, attention should be given to the veteran's history, education, skill, and training. Second, consideration of the veteran's physical ability is necessary, with possible relevant factors including the veteran's limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Finally, considerations should be given to the veteran's mental ability, including their limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. In this case, the Board determines that TDIU cannot be granted, as the Veteran's service-connected disabilities do not preclude substantially gainful employment. Prior to March 24, 2014 As an initial matter, the Board notes that the Veteran does not meet the schedular requirements under § 4.16 for TDIU prior to March 24, 2014. Specifically, the Veteran's service-connected disabilities consisted of cluster headaches, rated as 30 percent disabling, residuals of a fractured right arm, rated as 20 percent disabling, a low back condition, rated as 10 percent disabling, a cervical spine condition, rated as 10 percent disabling, tinnitus rated as 10 percent disabling, bilateral hearing loss rated as noncompensable, head scar rated as noncompensable, and a traumatic brain injury rated as noncompensable. The Veteran's combined rating for this period is 60 percent. Because there is not one disability rated at least 40 percent during this period, and because the total rating is less than 70 percent, the schedular criteria are not met. Where the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be considered when a veteran is nonetheless unable to obtain and maintain a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). Next, the Under Secretary for Benefits and the Director of Compensation and Pension Services submitted advisory opinions in September 2021 as to whether an extraschedular TDIU rating is appropriate prior to March 24, 2014. The Under Secretary, while noting the Veteran's hand arthritis caused some difficulty in doing manual labor, recommended a denial of TDIU on an extraschedular basis. The Director's advisory opinion also opined against an extraschedular rating of TDIU. The Director noted that, while the Veteran had some impairment due to his hand arthritis and headaches causing some functional limitation, he was not unable to obtain or maintain gainful employment due to his service-connected disabilities. The Board notes that it is not obligated to defer to the findings of the Under Secretary or the Director. See Wages v. McDonald, 27 Vet. App. 233 (2015). Nevertheless, the Board agrees that an award of TDIU on an extraschedular basis prior to March 24, 2014 is not warranted. The evidence demonstrates that during the period prior to March 24, 2014, the Veteran had numerous disabilities, both service-connected and nonservice-connected; considering only his service-connected disabilities, the Board finds they did not preclude substantially gainful employment. Stated another way, he was not shown to be incapable of a regular gainful occupation despite the functional impairment due to his headaches, arm, and spine disabilities. The Veteran first became service-connected for the above disabilities in December 2011. In his March 2021 TDIU application, he wrote that he last worked full-time as a mechanic in June 2011. However, he also wrote that he has been "unable to work since 2013" due to his service-connected disabilities. He reported having a high school diploma, and no other education. Turning to the Veteran's Social Security Administration (SSA) records, the Board notes that such decisions are not controlling on VA determinations, however they can provide some helpful evidence. In September 2011, the SSA found that the Veteran's disabilities rendered him unable to work. The decision was based on evidence showing impairments attributable to osteoarthritis and allied disorders. While a more detailed decision is not of record, the Board notes that in his SSA application the Veteran reported arthritic pain in his knees and hands as the reasons he is unemployed. The Veteran's medical records for this period, indicate that his service-connected disabilities cause some functional impairment. In April 2013, the Veteran underwent VA examinations to determine the severity of his service-connected lumbar and cervical spine, bilateral hearing loss, and tinnitus disabilities. While the examiner found arthritis in the Veteran's lumbar spine, they concluded that his lumbar and cervical spine conditions had no impact on his ability to work. Regarding his bilateral hearing loss, he reported that it interferes with his ability to communicate in most situations, including the workspace. The Veteran reported that his tinnitus delayed his sleep, however, it did not "interfere with his daily activity or work". Next, the Veteran underwent a VA examination in May 2013, to determine the severity of his service-connected headaches. Here, the examiner responded to the question of whether his headaches caused a functional impairment, with "not applicable." Overall, the VA examinations of record during this period indicate some functional limitations due to his bilateral hearing loss, however, overall, the examiners found his service-connected disabilities did not prevent him from gainful employment. Finally, the Veteran submitted a statement regarding TDIU in October 2013. Unlike his statement to the SSA, here, he attributed his inability to work to his service-connected headaches. Specifically, he wrote that the headaches "have forced [him] to quit [his] full time employment earlier than I wanted to and I am now unemployed due to this condition." The Veteran's education, work history, and skills/training have been considered. See 38 C.F.R. § 4.16. During his time in the military, the Veteran worked as an aircraft maintenance technician. Post-military, the Veteran was employed as a nuclear power plant security guard and as a mechanic. In SSA records dated July 2011, the Veteran wrote that he had to retire from his position as a mechanic, because he could no longer perform the job without pain to his hands and knees. The Board notes that while the applicable statutes and regulations do not define "sedentary work", the SSA has stated that "[s]edentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally, and other sedentary criteria are met." 20 CFR 404.1567 (a). The Board finds that this definition is adequate for adjudication purposes here. Here, the Veteran's occupational background and level of education confirms that he was qualified for sedentary occupations during the period on appeal. While he reports having never attended college, his 21 years in the Air Force include supervisory positions as a senior non-commissioned officer (NCO). Indeed, his DD-214 includes an NCO professional military education graduate ribbon. Presumably, this position included administrative tasks, such as performing evaluations of junior NCOs, which show he has some experience in administrative or sedentary work. Thus, the VA medical opinions indicating that his specific disabilities do not preclude sedentary work, as defined above, weighs against the instant TDIU claim because the Veteran's background indicates he was qualified for sedentary work, such as work in an administrative capacity at a desk during the period on appeal. Moreover, the Board reiterates that no VA examiner has opined that his service-connected disabilities prevented him from working during this period. While the Veteran reported difficulty hearing others as a functional limitation, the different examiners all concluded that he was still able to work. The Board finds that the clinical evidence is sufficient for the Board to make its own conclusions. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). Additionally, the Board has considered the advisory opinions of the Under Secretary and the Director. As such, the Board concludes that the Veteran's service-connected disabilities, on an extraschedular basis, did not prevent him from obtaining and retaining substantial gainful employment during the period prior to March 24, 2014. From March 24, 2014 to May 17, 2018 From March 24, 2014, the Veteran was service-connected for the following disabilities: cluster headaches rated as 50 percent disabling; residuals of a right radial head fracture rated as 20 percent disabling, a lumbar back disability rated as 10 percent disabling, a cervical back disability rated at 10 percent disabling, tinnitus rated at 10 percent disabling, bilateral hearing loss rated at a noncompensable rating, a head scar rated at a noncompensable rating, and a traumatic brain injury rated at a noncompensable rating. The Veteran's total disability rating as of March 24, 2014 was 70 percent. Accordingly, as the Veteran's headaches were rated at more than 40 percent disabling, and his total combined disability rating was 70 percent, the Board finds that the Veteran met the TDIU schedular threshold as of March 24, 2014. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Additionally, the Veteran was granted five separate ratings for degenerative arthritis of his right and left hand, each rated at 10 percent effective May 30, 2014, bringing his combined disability rating to 90 percent as of that date. During this period, the Board finds the evidence indicates that the Veteran was not incapable of employment by virtue of his service-connected disabilities. In March 2014, the Veteran underwent a VA examination to determine the severity of his headaches. He reported that he was a retired mechanic, and currently does woodworking as a hobby. The examiner wrote that there was "NO indication" he was disabled in 2011 due to his headache condition. Further, the examiner stated that while he may need some accommodations at times, his headaches would "not prevent physical or sedentary occupation." In May 2014, the Veteran submitted a private opinion regarding his headaches. The private physician wrote that he was "unable to find meaningful work due to prostrating attacks of more than 4 times a month and are productive of severe economic adaptability." During this period, the record clearly indicates that the Veteran's headache condition presented some impediment to work. However, as the VA examiner wrote, while he "may need" accommodations for his headaches, the severity of his condition would not prevent physical or sedentary work. The Board recognizes the May 2014 private opinion, stating that the Veteran is unable to find "meaningful" work due to his headache condition. Both opinions indicate that the Veteran may need accommodations to perform sedentary work. Given the availability of reasonable accommodations under the Americans with Disabilities Act, and the wide spectrum of available jobs in the economy, the Board finds that four or more prostrating headaches per month should not altogether preclude substantially gainful employment. The Board notes that, even if a medical professional finds a veteran unemployable due to a service-connected disability, such a finding is not dispositive, as the Board has ultimate responsibility for determine whether a veteran is unemployable. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The competent evidence of record does not show that the Veteran's service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevents gainful employment during this period. From May 17, 2018 In a July 2018 rating decision, the RO awarded the Veteran service-connection for diabetes mellitus, type II, effective May 17, 2018, and a 100 percent disability rating for active prostate cancer on a temporary basis, effective July 10, 2018. A TDIU is generally inapplicable when a Veteran's service-connected disabilities are rated at 100 percent. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, the Court has found that a TDIU is warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating is in effect. Id. Under those circumstances, there was no "duplicate counting of disabilities." Id, at 293; see 38 C.F.R. § 4.14. Here, as the Veteran met the schedular threshold for TDIU prior to receiving a temporary 100 percent disability rating, which is still in effect, and as he asserts that his service-connected disabilities, other than his prostate cancer, have rendered him unable to work, the claim for TDIU cannot be dismissed as moot from July 10, 2018. The Veteran underwent a VA examination in July 2018, to determine the severity of his service-connected diabetes condition. Here, the examiner concluded that his diabetes would have no impact on his ability to work. In September 2019, the Veteran underwent a TDIU VA examination to determine whether his service-connected disabilities prevented him from substantial employment. While not conducted in-person, the examiner reviewed the entire record, including past VA examinations, the private opinion and treatment records. Here, the examiner concluded that "[t]here is no effect on sedentary or physical employment, separately, or in combination, from: cluster headaches, residuals of fracture right radial head, neck and back." A different VA examiner, in September 2019, concluded that the Veteran's traumatic brain injury (TBI) residuals had no impact on his ability to work. In a separate September 2019 opinion, that examiner opined that the Veteran's bilateral hearing loss and tinnitus "can be annoying" in an occupational setting, indicating some level of functional impairment. However, the examiner stated that hearing aids are appropriate for the Veteran, and, when properly fitted, would reduce any impairment related to bilateral hearing loss and tinnitus. In July 2021, the Veteran underwent VA examinations for his service-connected: diabetes, hands, fingers, right forearm, lumbar and cervical spine, prostate, headaches, bilateral hearing loss, and tinnitus. Additionally, a separate opinion was provided by the examining physician as to whether his service-connected disabilities caused functional limitations and their effects on all forms of work, to include sedentary positions. Regarding the Veteran's diabetes, right forearm, lumbar spine, headache, cervical spine and prostate disabilities, the examiner found that these had no impact on his ability to work in any setting. For his hearing loss and tinnitus, the examiner concluded that it "can" impact employment, as tinnitus may interrupt reading and concentration, and his hearing loss may force others to repeat their statements. Finally, the examiner concluded that the Veteran's hand and finger disabilities do show a functional limitation, as they "may" cause difficulty with activities requiring intact grip and mobility of the fingers. The July 2021 examiner was asked to opine whether the Veteran's disabilities, overall, impact his occupational and employment activities. The examiner's opinion, was that he "may have difficulty with activities requiring intact grip and mobility of the fingers." The examiner listed no other functional limitations that could impact the Veteran's ability to secure gainful employment. The evidence does not show that the Veteran is precluded from manual or sedentary employment. Indeed, the examiner found his diabetes, forearm, lumbar and cervical spine, headaches and prostate disabilities to present no functional limitation. While the examiner noted that his hearing loss and tinnitus "can" cause some interruptions, such interruptions are not so prevalent as to prevent him from sustaining gainful employment, especially with the proper use of hearing aids. The Board recognizes that the Veteran's hand and finger disabilities cause some functional impairment, namely difficulty with intact grip and finger mobility. While this might preclude him from work as a mechanic, it would not preclude him from other physical or sedentary work. In so deciding, the Board acknowledges that the evidence, including VA Form 21-8940, shows that the Veteran is a high school graduate with previous employment as a security guard and mechanic, and that he has not been employed since June 2011. Notwithstanding such lack of employment, the Board cannot conclude that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities because, as discussed above, the July 2021 VA examination revealed that, outside of grip and finger mobility issues, the Veteran is fully capable of employment in a manual or sedentary setting. Thus, while grip and finger issues may cause problems as a mechanic, the examiner did not opine that the Veteran was not able to perform the work of gainful occupations that did not involve grip or finger mobility as primary functions. The Board has also considered the Veteran's statements that the effects of his service-connected disabilities, including his hand and finger pain, headaches and low back pain have prevented him from working. However, the Board assigns more probative weight to the well-reasoned medical opinions from the July 2021 VA examiner, and the medical evidence indicating the Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. Therefore, the weight of the evidence is against the Veteran's TDIU claim. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald