Citation Nr: 21077553 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-30 069 DATE: December 30, 2021 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. In May 2021, the Board remanded the issues on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose 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, or of 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Factors to be considered in determining whether unemployability exists are the veteran's education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran's 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 of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable 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, 363 (1993). The Veteran's current service-connected disabilities are: (1) other specified trauma and stressor related disorder, rated 30 percent from August 1, 2013; (2) residuals, shell fragment wound, right forearm, rated 20 percent from September 27, 1968; (3) residuals, shell fragment wound, left thigh, rated 10 percent from September 27, 1968; and (4) traumatic brain injury, rated 10 percent from June 27, 2014. From September 27, 1968, the Veteran's combined disability rating was 30 percent; from August 1, 2013, the Veteran's combined disability rating was 50 percent; and from June 27, 2014, the Veteran's combined disability rating was 60 percent. See generally 38 C.F.R. § 4.25, Table I - Combined Ratings Table. Therefore, the Veteran does not meet the schedular criteria for a 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 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). 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). Pursuant to the May 2021 Board remand, the Veteran's claim was referred to the Director of the Compensation Service. In September 2021, the Director of Compensation Service issued an Administrative review that found the Veteran's service-connected disabilities did not inhibit the Veteran's ability to perform sedentary work based on numerous medical findings. In June 2014, VA received the Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The Veteran indicated that he last worked as a handyman in 2005 and that PTSD and bilateral arm injuries prevented him from securing or following substantially gainful employment. He indicated that he left his last employment because of his service-connected disabilities. The Board notes that the Veteran is only service-connected for a right forearm disability and is not currently service-connected for any left upper extremity disability. The Veteran indicated that he completed 11th and 12th grades. During a January 2006 VA neurology appointment, the Veteran reported headaches and head pain since 2004 and noted concern about cataracts. He retired from semi-truck driving. During a December 2007 VA psychiatry appointment, the Veteran drove semi-trucks for 3 years with a company and then drove semi-trucks for himself until he retired second to his non-service-connected cataracts. He reported quitting high school during 11th grade, completing his GED during service, and having 2 years of college education. Upon examination, the Veteran was clean, casually dressed, maintained good eye contact, cooperative, and presented no abnormal psychomotor activity. His speech was normal, mood mildly dysphoric, affect mildly restricted, thought was linear and goal oriented, judgement and insight were fair, and he was oriented in all spheres. During a May 2014 VA general medical appointment, the physician noted that the Veteran requested an individual unemployability. The Veteran reported working as a semi-truck driver and handyman. He stopped working in 2005. The Veteran's non-service-connected right shoulder impingement, cervical radiculopathy, and brachial plexopathy decreased lifting tolerances and the ability to climb ladders. Also, he has a history of emphysema secondary to tobaccoism which affects functional capacity with certain types of physical employment. The Veteran has a history of memory loss which may affect all types of employment. The VA physician found that the service-connected conditions did not affect the Veteran's ability to obtain and maintain gainful sedentary employment. The right forearm disability minimally affects physical employment by decreased lifting tolerances and the left thigh disability does not affect employment. The physician noted that the Veteran should not lift more than 20 pounds unassisted. The physician noted that the Veteran has a history of right shoulder impingement, cervical radiculopathy, and brachial plexopathy, all of which are not service-connected and have more of an impact on physical employment. During a May 2014 VA examination for muscle injuries, the Veteran had normal muscle strength of lower and upper extremities. The Veteran regularly used a cane. The examiner opined that the Veteran's muscle injuries and scars did not impact his ability to work. On VA examination for the Veteran's traumatic brain injury (TBI) in November 2014, the examiner noted that the Veteran complained of mild memory loss; however, upon MMSE testing the Veteran correctly answered 30/30. Judgement was normal. Social interaction was routinely appropriate. He was oriented in all spheres. The Veteran reported tremors and foot pain second to shrapnel. The Board notes that the Veteran is not service-connected for shrapnel injuries to his feet. There were no neurobehavioral effects. He was able to communicate by written and spoken language. He did not have any residuals to his TBI, such as headaches. The examiner noted that he had tremors in both upper limbs. The Veteran's residual conditions of a TBI did not impact his ability to work. The examiner noted that the Veteran was a handyman until 2005 and that he was unable to work due to non-service-connected tremors of both upper limbs. A November 2014 VA aid and attendance or housebound examination report shows that the Veteran had functional restrictions of his upper extremities. The examiner noted that he had tremors, poor grip strength bilaterally, and some ulnar-sided numbness on the right hand. He was able to perform all self-care activities of daily living. The Veteran had good bilateral lower extremity strength. He had good weight-bearing and propulsion, but poor balance. The veteran was diagnosed with memory loss, essential tremors, aortic aneurysm, right shoulder impingement, cervical degenerative disc disease, brachial plexopathy, right forearm shrapnel injury, and left thigh shrapnel injury. The examiner noted that the right forearm shrapnel injury may contribute to decrease strength in the extremity. All other findings are from the non-service-connected conditions listed above. In June 2016, the Veteran stated that he used a walker as he was blown up during active service. He reported being unable to work or perform any activities of daily living. In a December 2016 statement, the Veteran's representative asserted that the Veteran's service-connected conditions rendered him unemployable. Specifically, the Veteran's right arm disability caused him to be released from several jobs due to an inability to perform required tasks. An April 2019 VA treatment record notes that the Veteran drove a semi-truck for 25 years and had a handyman business for 20 years. He retired in 2005. The examiner noted that the Veteran has more than 300 pieces of shrapnel in his arms and back and is no longer able to work. He has difficulty with holding items in his hand because he cannot grip. The Veteran reported enjoying fishing, hunting, working on vehicles, painting pictures, watching television, and reading. In September 2019, the Veteran underwent a VA examination. He was diagnosed with other specified trauma and stressor related disorder. The VA examiner found that his diagnosis caused an occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported completing the 11th grade. He worked as a semi-truck driver for 25 years and retired in 2005 due to medical conditions. His symptoms included anxiety and chronic sleep impairment. Upon examination, the Veteran was cooperative, polite, mood was normal, and he interacted appropriately. The Veteran did not appear to pose a threat to self or others. In an August 2020 statement, the Veteran's representative asserted that the Veteran's service-connected conditions rendered him unemployable. He noted that the Veteran had not worked for 15 years and was unable any type of work due to his arm injury and mental disorder. Further, the representative asserted that the Veteran did not have any specialized training. In May 2019, the United States Court of Appeals for Veterans Claims (Court) has held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran's history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue; and 3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). In Ray v. Wilkie, the Court explained that substantially gainful employment contains economic and noneconomic components. The economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. In reviewing the noneconomic factors including the Veteran's work history, education, skill, and training, and his physical and mental ability to perform work activities, the record shows that the Veteran meets the requirements to be able to work. Based on the above, the Veteran has worked as a semi-truck driver for 25 years, performing driving and loading duties, as well as a handyman for 20 gears performing general maintenance and repair work. As for his education, the Veteran obtained a high school diploma equivalent during active service, obtaining 2 years of college education, and completed professional courses for semi-truck driving. Therefore, the Veteran has indicated he is able to obtain the skills, knowledge, and training to obtain full-time employment. Next, the Board will address whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue. The evidence shows that Veteran's service-connected disabilities impair his earning capacity in civilian occupations. Notably, VA examinations found that the functional impact of the Veteran's other specified trauma and stressor related disorder caused an occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Notably, he had symptoms of anxiety and chronic sleep impairment. An April 2019 VA treatment record noted that the Veteran has more than 300 pieces of shrapnel in his arms and back and is no longer able to work. He has difficulty with holding items in his hand because he cannot grip. However, during a May 2014 VA examination for muscle injuries, the Veteran had normal muscle strength of lower and upper extremities. The examiner opined that the Veteran's muscle injuries and scars did not impact his ability to work. During a November 2014 VA examination, the physician found that the Veteran had poor grip strength bilaterally. He was able to perform all self-care activities of daily living. The Veteran had good bilateral lower extremity strength. He had good weight-bearing and propulsion, but poor balance. The examiner noted that the service-connected right forearm shrapnel injury may contribute to decrease strength in the extremity. However, it was not certain as the Veteran had non-service-connected diagnoses of essential tremors, right shoulder impingement, cervical degenerative disc disease, and brachial plexopathy. In May 2014, a VA examiner found that the Veteran's non-service-connected right shoulder impingement, cervical radiculopathy, and brachial plexopathy decreased lifting tolerances and the ability to climb ladders. Also, he has a history of emphysema secondary to tobaccoism which affects functional capacity with certain types of physical employment. The VA physician found that the service-connected conditions did not affect the Veteran's ability to obtain and maintain gainful sedentary employment. The right forearm disability minimally affects physical employment by decreased lifting tolerances and the left thigh disability does not affect employment. The examiner noted that the Veteran should not lift more than 20 pounds unassisted. The physician noted that the Veteran has a history of right shoulder impingement, cervical radiculopathy, and brachial plexopathy, all of which are not service-connected and have more of an impact on physical employment. The Board finds that the combined disability rating compensates the Veteran for his service-connected impairments. See 38 C.F.R. § 4.1. The medical opinion evidence from the VA examiners essentially reflects that the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation; the documented findings indicate that the Veteran continued to be able to perform physical work duties, even considering the symptoms of his service-connected disabilities. Although the Veteran stated that he stopped working due to his service-connected disabilities, he also stated on multiple occasions that his non-service-connected cataracts disabilities prevented him from working. Therefore, the evidence demonstrates that the Veteran continued to possess the skills necessary to be employed as a truck driver, or similarly qualifying employment, if he so chose. Furthermore, since retiring in 2005, the Veteran engaged in fishing, hunting, working on vehicles, and painting pictures. To conclude the analysis, the Board will address 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 work-place stress, get along with coworkers, and demonstrate reliability and productivity. During a December VA psychiatry appointment, the examiner noted that the Veteran maintained good eye contact, was cooperative, and presented no abnormal psychomotor activity. His speech was normal, mood mildly dysphoric, affect mildly restricted, thought was linear and goal oriented, judgement and insight were fair, and he was oriented in all spheres. During his November 2014 VA examination for his service-connected TBI, the examiner found that there was no objective evidence of memory loss as the Veteran correctly answered all MMSE testing questions. Judgement was normal. Social interaction was routinely appropriate. He was oriented in all spheres. There were no neurobehavioral effects. He was able to communicate by written and spoken language. He did not have any residuals to his TBI, such as headaches. The examiner noted that he had tremors in both upper limbs. The Veteran's residual conditions of a TBI did not impact his ability to work. During his September 2019 VA examination, the Veteran was cooperative, polite, mood was normal, and he interacted appropriately. The Veteran did not appear to pose a threat to self or others. Therefore, the Board finds that the Veteran obtained educational and real-world experiences that would provide a meaningful advantage at the physical and sedentary assertional level if the Veteran sought to be employed. Of note, the Veteran has stated on multiple occasions that he was unable to work due to his non-service-connected cataracts, right shoulder impingement, cervical radiculopathy, brachial plexopathy, and emphysema. Specifically, the Veteran stated that he retired from semi-truck driving second to his non-service-connected cataracts. See December 2007 VA psychiatry appointment. Although the Veteran believes that he cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the Board finds that the more probative evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent, credible and probative opinion on a matter as complex as to what is the objectively shown functional impairment caused by the service-connected disabilities and what is the impact of those disabilities on his ability to attend to daily activities including capacity for occupational activities. Thus, while the Veteran's opinions and observations are competent evidence that has been given full consideration by the Board, the Board finds that his statements are not entirely consistent with the objective medical evidence regarding the nature and degree of limitation of the Veteran's service-connected disabilities as it pertains to the Veteran's capacity for gainful employment. The Board specifically finds that the evaluation of the actual functional impact of his disorders on the Veteran's capacity to engage in occupational activities from a clinical standpoint is a matter squarely within the realm of expert clinicians, and not lay expertise. In any event, any probative value of the Veteran's own conclusions is outweighed by that of the opinions provided by the more recent VA medical professionals, who reviewed the claims folder and found that the Veteran's service-connected disabilities did not render him incapable of obtaining and retaining employment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the evidence is against any finding that his service-connected disabilities caused him to be unable to secure or follow a substantially gainful occupation; as such entitlement to a TDIU rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.