Citation Nr: 21075495 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-59 347 DATE: December 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The Veteran does not meet the schedular requirements for the assignment of a TDIU and his combined service-connected disabilities have not prevented him from securing or following substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from September 2004 to October 2012. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the Board in January 2020. The Board then remanded the appeal in May 2020 and July 2021. Entitlement to a TDIU The Veteran contends that he is unable to obtain or maintain gainful employment due to right shoulder, bilateral wrist, and bilateral knee disabilities, and that an extraschedular TDIU is warranted. Parenthetically, the Board notes that the Veteran is not service connected for a bilateral wrist disability. In support of his claim, the Veteran has asserted that he was fired or terminated from employment due to pain and an inability to perform necessary job functions as a result of his service-connected disabilities. 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. The Veteran is service connected for a right shoulder disability, rated 20 percent disabling; a right knee disability, rated 20 percent disabling; an umbilical hernia scar, rated 10 percent disabling; a left foot scar, rated 10 percent disabling; a sleep disorder characterized by insomnia, rated 10 percent disabling; a left knee disability, rated 10 percent disabling; and, residuals of an umbilical hernia, rated as noncompensable (0 percent disabling). The Veteran's combined evaluation is 50 percent from May 21, 2014, prior to which his combined disability was noncompensable. Therefore, the Veteran does not meet the percentage standards set forth in § 4.16(a). Nevertheless, even if a veteran fails to meet the applicable percentage standards in § 4.16(a), entitlement to a TDIU on an extraschedular basis may still be granted. 38 C.F.R. § 4.16(b). Neither the AOJ nor the Board is authorized to assign an extraschedular TDIU in the first instance. Id. The rating boards should submit to the Director, Compensation Service (Director), for extraschedular consideration all cases of veterans who may be unemployable by reason of service-connected disabilities but fail to meet the schedular TDIU requirements. The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Here, the issue of extraschedular consideration was referred to and adjudicated in the first instance by the Director in September 2021. The Board is free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The ultimate question is whether the veteran is 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). The question for the Board in this case is whether the Veteran's service-connected disabilities alone are of sufficient severity to make him unable to secure and follow a substantially gainful occupation consistent with his education, skill, and training. The Board finds that the preponderance of the evidence is against such a finding. The record shows that the Veteran completed high school, some college, obtained an associate's degree in science, and underwent additional training or education in autobody repair, mechanics, welding, and nursing. Occupationally, he worked in finance for over 7 years while serving in the Marine Corps. After leaving service, he worked retail, as a shipfitter, and performed odd jobs for his brother's business, including jobs involving painting and air conditioning. He also participated in VA's compensated work therapy (CWT) program maintaining VA grounds, picking up trash, and raking leaves from sometime in 2017 until approximately May 2018. In June 2020, he was reportedly working for VA housekeeping. Notably, despite the Veteran's assertions that his physical limitations from his service-connected disabilities preclude employment, the record supports that the Veteran was able to perform physical employment duties without complaints or reported significant impairment. For example, in October 2017 he requested a letter from a physician stating that he was able to work, and a December 2017 CWT plan noted that "[a]ccording to the Veteran and the information in the consult," the Veteran did "not have any medical limitations or restrictions." In January 2018, the Veteran reported that he enjoyed working outside and staying busy, that he wanted to do more work, and that he became bored easily. In February 2018, he reported "no physical health concerns with this assignment." More recently, in June 2020, with respect to his work with VA housekeeping, the Veteran reported that he loved his work and did not otherwise suggest difficulty performing his work due to physical impairment. The record similarly supports that the Veteran is capable of performing the mental acts required by employment, despite his service-connected sleep (insomnia) disorder. In this regard, in May 2018, in conjunction with his work with CWT, it was noted that the Veteran was rated as "[g]ood" in the areas of attendance and punctuality, grooming skills, on-the-job performance skills related to quality and quantity of work, work-related community skills (including time management, mobility, and money management), functional literacy, knowledge of work practices, work-related academic skills, work-related communication skills, knowledge of legal affairs and tax matters, and mobility and transportation skills. Additionally, during March 2015 VA treatment, while reporting that he had trouble at the shipyard because of forgetfulness and not following through on work orders, he also reported that managed finances well and had a valid driver's license with no issues driving. The Board also finds probative that, as noted, in January 2018, the Veteran reported that he wanted to do more work demonstrating his own belief that he was mentally capable of doing more than he was assigned. In June 2020, the Veteran reported that he was able to remain focused on doing his work by using headphones to tune out others. The available VA examination reports similarly support that, while the Veteran may have symptoms and impairment associated with his service-connected disabilities, they do not preclude gainful employment. Physically, VA examinations in March 2013, July 2015, October 2017, July 2020, and December 2020, cumulatively revealed complaints of knee, shoulder, scar, and umbilical pain; findings of shoulder weakness and limitation of motion, and pain that causes functional loss; and some limitation of knee motion. Additionally, while some examiners found no functional impact caused by the Veteran's various disabilities, others noted difficulty with lifting and overhead work, and an inability to completely reach overhead; difficulty standing or walking for prolonged periods; and, increased pain with walking, standing, or running. However, no examiner indicated severe functional impairment associated with any of the Veterans' service-connected disabilities and, as noted, the Veteran has demonstrated an actual ability to perform physical duties required by work, particularly his work in ground maintenance and housekeeping, without reported difficulty. Indeed, apart from work duties, the Veteran also reported that he enjoyed working out in February 2013 and an October 2020 VA treatment note states that the Veteran was "still working out at the VA." Mentally, VA examiners in September 2015 and June 2020 found no more than mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or were controlled by medication. The June 2020 VA examiner also noted that the Veteran "only reported poor attention/concentration at varying times," and clinical records show the Veteran was routinely observed to be euthymic, calm, cooperative, or friendly; to have good social skills; to have fair or good attention, concentration and/or memory; and/or to otherwise have mild symptoms, to include in July 2017, March 2019, February 2020, and October 2020. The foregoing supports no more than mild to moderate impairment in occupational functioning due to the Veteran's psychological symptoms, including his service-connected sleep (insomnia) disorder. The Board has considered the Veteran's hearing testimony regarding the nature and severity of his symptoms and their impact, including his reports that he was fired from or forced to give up jobs due to pain or an inability to fulfill his work requirements due to his physical disabilities. Unfortunately, however, the Board finds those reports to lack probative value, as there is contradictory evidence of record. For example, despite a December 2017 report during VA treatment that he had been terminated from his position as a shipfitter and an October 2019 written statement that he had been out of work for 3 years due to military related injuries, the Veteran reported in November 2016 that he was laid off by the shipyard and "doesn't expect to be rehired until March." Such statement supports a temporary layoff, not a termination due to an inability to perform work duties. Indeed, in September 2019, the Veteran reported that he was considering getting back into one of the military branches and his only reported concern, apart from use of stimulants to treat ADHD, was a past gun charge for carrying a firearm. In fact, at that time he reported that he had actually been "hired on with an international safety company but had an old charge that he had to get expunged..." In this regard, the record shows that during February 2013 VA treatment, the Veteran reported that he was arrested in California for carrying a loaded gun in his car and also had a disturbing the peace charge stemming from a marital conflict in 2007. Also noteworthy is that during March 2015 VA treatment, the Veteran described problems at the shipyard because of forgetfulness and follow-through, but not related to pain or physical impairment. Similarly, in September 2019, the Veteran reported that he had been doing automobile paint and body work but "got sick from the fumes" and was therefore going to automobile mechanic school; he did not report an inability to do paint and body work due to right shoulder, knee, foot, umbilical pain or other service-connected disability or disabilities. In sum, when considering the Veteran's service-connected physical and mental limitations combined, this evidence does not show he is prevented from gaining and maintaining a substantially gainful occupation. He has some limitations with prolonged walking, sitting, and standing, lifting and overhead activity, plus sleep impairment with decreased concentration. Nevertheless, the evidence shows that he would not be unable to perform the functional requirements of physical employment, and also has the mental capacity and skills to perform a sedentary job. To the extent that the Veteran has had difficulty with prolonged standing and walking, sedentary positions generally involve sitting to complete most work tasks. (By "sedentary work," the Board intends the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018).) Such work would not be outside his background and experience. His educational history, military experience, seven years of work in finance, as well as his work in retail and a shipyard would have transferrable skills within his physical and mental limitations, such as time management, customer service, teamwork, performing general clerical and administrative support tasks, learning new procedures, and understanding and carrying out orders and written instructions. Such skills are shown to be within his physical and mental abilities even when considering the service-connected limitations. In short, it remains true that the Veteran has occupational limitations due to service-connected disabilities and has been unemployed, in a protected work environment, and/or had difficulty with maintaining employment throughout the appeal period. However, this was due to a combination of his service-connected and nonservice-connected disabilities and legal issues. The evidence does not show that his service-connected disabilities alone would preclude a substantially gainful occupation. As such, the preponderance of the evidence is against the claim, to include on a schedular or extraschedular basis. Thus, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.