Citation Nr: 21077200 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-15 188A DATE: December 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), excluding the periods from May 31, 2012 to May 31, 2013, and from April 20, 2016 to July 31, 2016, and from September 11, 2020, is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran had a service connected disability that prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a) (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from January 1981 to April 1991. The Veteran passed away in September 2020. The appellant is the Veteran's surviving spouse, and in May 2021, the RO found that the appellant was eligible for substitution as to the Veteran's ongoing claims. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue in September 2020. The requested development having been completed the matter again is before the Board. On November 10, 2021, the appellant requested a 30 day extension of time to respond to the October 1, 2021 supplemental statement of the case. That time has been honored and has expired. The Veteran has a 100 percent rating for his service-connected left hip disability for the periods from May 31, 2012, to May 31, 2013, and from April 20, 2016, to July 31, 2016. In addition, for that period the Veteran is in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) due to the single 100 percent rating and an "additional" disability of 60 percent or more ("housebound" rate) by a combination of service-connected disabilities stemming from a common etiology. See 38 U.S.C. § 1114(s); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) (discussing VA's "well-established" duty to maximize a claimant's benefits). The above periods are not on appeal, as the Veteran is in receipt of the maximum available for that period. For the remaining periods, the issue of entitlement to TDIU remains before the Board. Specifically, while the Veteran has been awarded a 100 percent rating for the entire period remaining on appeal the Board must determine whether a single disability rendered him unable to secure and follow a substantially gainful occupation in order to qualify for statutory SMC benefits at the "housebound" rate. Entitlement to TDIU 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. 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor, which takes this 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 recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran's service-connected disabilities included bilateral pes planus, rated as 10 percent prior to December 10, 2012, and as 50 percent disabling from that date; traumatic arthritis status post left hip fracture resulting in total hip arthroplasty, rated as 50 percent from June 1, 2013; left sciatic nerve injury with predominant peroneal damage, rated as 40 percent from April 10, 2012; left upper extremity sensory deficit, rated as 20 percent disabling from December 10, 2012; dislocation of acromioclavicular joint, left shoulder with loss of motion, rated as 20 percent prior to April 20, 2016, and as 20 percent from July 20, 2016; and multiple surgical scars, rated as noncompensably disabling. The combined disability rating was 100 percent for the entire period on appeal. As such, the Veteran met the schedular criteria for TDIU for the entire appellate time period. The RO received the Veteran's informal claim for an increased rating for the left hip disability on May 31, 2012. A December 2012 claim for TDIU indicated that he had last worked full time in July 2012 as a material handler. The Veteran had completed high school and that his left hip, leg, arm, hand, and foot conditions caused limited ranges of motion and problems with lifting, standing, walking, crawling, bending, gripping, turning, and fatigue. He contended that he had been terminated from employment due to problems related to the above disabilities. In a contemporaneous statement, the Veteran indicated that his left hip disability affected employment and daily activities due to pain, limited range of motion, standing, walking, bending, and crawling. A March 2014 VA foot examination report noted left foot pain / swelling that began in April 2011 after left hip surgery, left foot, and all toes beginning to tingle that was worse with prolonged standing. The bilateral foot disability impacted his ability to work due to decreased sensation in the left foot and caused him to trip and fall (with the last fall in 2012). A March 2014 VA left hand examination report indicated that starting in June 1990 the Veteran began having left hand / finger spasms, numbness, and tingling. The neuropathy affected his ability to work in that he had problems grasping, twisting motion (such as opening jars), and holding objects. A March 2014 VA left shoulder examination report noted ongoing pain, stiffness, spasm, and numbness. Following examination, the examiner indicated that it was at least as likely as not that the Veteran was able to perform sedentary work, meaning exerting up to 10 pounds of force occasionally and / or negligible amount of force frequently to lift, carry, push, pull. The examiner explained the use of the term "sedentary work." Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met. In April 2017, the Veteran was using a wheelchair for mobility, but was able to walk. The Veteran was notably exhibiting signs of great discomfort, such as constantly changing his position, wincing, and rubbing his hip and leg. The Veteran stated that he could no longer work. In October 2018, the Veteran indicated that he wanted to be a radiologist and had past work experience at BMW (presumably the automobile manufacturer) and in a warehouse. An August 2019 VA shoulder examination report included left shoulder range of motion findings of 120 degrees of flexion, 100 degrees of abduction, and 60 degrees of external and internal rotation. The left shoulder disability did impact his ability to perform occupational tasks. An August 2019 left upper extremity sensory deficit examination report noted constant left shoulder pain and arm/hand neuropathy pain that had resolved since his carpal tunnel surgery. He denied radicular pain, numbness, or paresthesias in the left arm/hand. He also denied hand spasm, cramping, or decreased grip strength. The peripheral nerve disability did not affect the Veteran's ability to work. In October 2019, the Veteran reported that his hip had been okay since his total hip arthroplasty, but that he had left leg weakness and foot drop due to associated left sciatic and peroneal nerve injuries. In addition to the gait problems, the Veteran had occasional falls due to the leg giving out. In February 2020, the Veteran complained of pain in the hip, back, and knees. He usually walked using a cane but had forgotten it that day. The Veteran had a left foot drop since his total hip replacement and back pain that he believed was related to the hip. A September 2021 TDIU extraschedular memorandum from the VA Executive Director, Compensation Service, is of record. The memorandum discussed the Veteran's service-connected disabilities and that the Veteran reported becoming disabled in July 2012 due to a left hip disability. The Veteran had a high school diploma. SSA records showed that the Veteran had disability benefits from April 2012 due to conditions of left leg nerve damage, left shoulder problems, and hip replacement. The memorandum concluded, "It is conceded that the Veteran's service-connected conditions could impose a level of occupational impairment, however the preponderance of evidence does not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions. It is the established policy of the Department of Veterans Affairs 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. In this case, after considering all relevant evidence; including, but not limited to the Veteran's education, training, and work history, and the Regional Office's summary of evidence, the Director of Compensation Service has determined the overall evidence does not support the contention that the service-connected conditions or a combination of the effects of those disabilities prevented employment." The Board acknowledges that this is a supplemental decision, not evidence, and will evaluate it accordingly. Based on the evidence of record, the Board does not find that any single disability rendered him unable to secure and follow a substantially gainful occupation. The Veteran's disabilities clearly caused significant problems with his occupational functioning. That said, the Veteran's hip had improved greatly since his total hip arthroplasty. Similarly, the Veteran's upper extremity neurological problems also had improved after carpal tunnel surgery. The Veteran continued to have a number of health issues, but there is no evidence to suggest that he could not have worked at numerous jobs that did not require significant physical activities. Jobs such as a greeter or cashier in a supermarket or other retail store. The Veteran also could have performed work as a telemarketer or other jobs involving telephone use. In any case, there is no evidence that the Veteran could not obtain or retain employment due to a single disability both prior and subsequent to his hip and carpal tunnel surgeries. Based on the foregoing, the Board finds no basis for granting entitlement to TDIU based on a single disability for any period on appeal. The Board acknowledges that the Veteran's service-connected disabilities had a cumulative effect on his occupational functioning which is recognized by the 100 percent combined schedular rating for the industrial or commercial impairment resulting from his disorders. As such, for the reasons and bases set forth above, the preponderance of the evidence is against finding that any single service-connected disability was of such severity so as to preclude his participation in any form of substantially gainful employment. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.