Citation Nr: 21006940 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-34 439 DATE: February 8, 2021 ORDER A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities manifests combined ratings of 40 percent prior to July 2013 and 50 percent thereafter; the resulting impairment does not warrant referral for extraschedular consideration of whether the service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1955 to January 1958. This appeal is before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010, the Veteran, his wife, and his doctor testified during a Board hearing in Washington, DC, before a Veterans Law Judge (VLJ) no longer employed by the Board. In April 2019, the Veteran and his wife testified during a second Board hearing before the undersigned VLJ via videoconference. Transcripts of both hearings are included in the claims file. The Veteran initially submitted an application for a TDIU in October 2009. He gave testimony regarding the claim at the abovementioned September 2010 hearing, but there was no increased rating claim on appeal for TDIU to attach under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As such, in its October 2010 decision the Board referred the undecided claim for lack of jurisdiction. The issue was decided in a January 2013 supplemental statement of the case. In an April 2013 decision, the Board again noted the issue but found that it had not been adjudicated. The issue was subsequently denied in a February 2014 rating decision. In October 2014, the Board remanded the issue with instruction that a statement of the case be issued under Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case was issued in August 2015 and the Veteran submitted a substantive appeal in September 2015. The Board is therefore satisfied that the instructions in its October 2014 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2019, the Board denied the Veteran’s appeal for a TDIU. He appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in an August 2020 order granting a joint motion for remand (JMR). The issue is therefore again before the Board. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (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. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (“Director”) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of 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). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Since submitting his TDIU claim in October 2009, the Veteran has been service-connected for four disabilities. His diastasis recti, initially claimed as a hernia, has been rated at 30 percent for the entire period. Residuals of spinal meningitis, to include restless leg syndrome, bilateral hammertoes, and rheumatoid arthritis of the feet, have been rated at 10 percent for the entire period. Tinnitus has likewise been rated at 10 percent for the entire period, and bilateral hearing loss was initially noncompensable but was increased to 10 percent effective July 2013. His combined rating has thus been 40 percent prior to July 2013 and 50 percent thereafter. He is therefore ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a), and the Board may only consider whether it is necessary to remand for consideration by the Director of the Compensation Service for consideration of extraschedular TDIU under 38 C.F.R. § 4.16(b). In his October 2009 claim, the Veteran reported that he became too disabled to work in January 1996. He reported that his spinal meningitis, hernia, and arthritis of the feet prevented him from working. He reported that he stopped working as a warehouse receiving supervisor in January 1996 because of his disabilities. He reported that he worked part-time as a golf course ambassador in 2007, but he could not stand or walk for any length of time because of his feet. He reported that he had a high school diploma and one and half years of college. The Veteran submitted a January 2010 private examination report based in part on a November 2009 functional capacities evaluation performed by a physical therapist. The report found that he did not demonstrate the functional capabilities to return to work in any position. He was unable to work in low-physical demand categories due to his non-material handling task deficits. He was unable to ambulate based on his foot disabilities and reduced ankle ranges of motion. His chief complaints included restless legs at night, fidgetiness, hearing loss, hammer toes, hernia, erectile dysfunction, rheumatoid arthritis, and pain in his hands and wrists. The physician identified functional deficits in standing or walking for long periods of time, bending to engage in lower-level activities, kneeling, and lifting weight overhead. The Board notes that the physician’s opinion regarding service-connected disabilities was based in part on his opinion that the Veteran’s cardiac disabilities should be service-connected, as well as an accompanying opinion from a psychologist that cognitive symptoms were attributable to his spinal meningitis residuals. At his September 2010 Board hearing, the Veteran reported that he had been retired since 1999, and he had worked the last couple of years as a golf course ranger for 15 hours per week, though he gave that up three months ago because of pain in his back and legs. Additionally, the physician who authored the January 2010 report testified and reiterated his opinion that the Veteran was unable to work due to his service-connected disabilities. VA treatment records reflect that in September 2010 the Veteran reported that he regularly exercised via yard work and golf. At an October 2013 VA examination for his diastasis recti, the examiner found that the disability caused the Veteran to be unable to bend, stoop, and lift. As such, the examiner stated that clerical occupations were neither limited nor precluded by the disability, as it only caused mild pain with lifting and was not treated by analgesics. At a January 2014 VA examination for the Veteran’s feet, the examiner found that the Veteran’s foot disabilities affected his ability to work but did not offer more specific information. At a January 2014 VA examination for the Veteran’s meningitis residuals, the examiner opined that the Veteran’s meningitis did not have any current residuals. At an April 2014 VA examination for the Veteran’s hearing loss and tinnitus, the examiner stated that his worsening hearing loss affected his ability to work but did not offer more specific information. The examiner further stated that tinnitus did not impact his ability to work. At the Veteran’s April 2019 hearing, his representative recommended that he drop the appeal because he did not meet the criteria for unemployability. The Veteran and his wife reported that he was unemployable because of his age, Alzheimer’s, cardiac problems, and trouble with his legs and feet. When shown his service-connected disabilities, they stated that his feet prevented him from working. He stated that he retired in 1999 because the company he was working for dissolved, and he had not sought full-time employment since. He reported that since he had worked painting houses and as an ambassador for a golf course for three years. They stated that he had to stop painting houses because it took too much out of him and he had problems with his shoulders. They stated that he was having trouble with his eyes and with his hands. The Board finds that the evidence weighs against a finding that the Veteran’s service-connected disabilities cause the employment impairment necessary to warrant referral to the Director of the Compensation Service for consideration of extraschedular TDIU. The testimony of the Veteran and his wife at his April 2019 hearing underscores that while he is without a doubt currently unemployable, his service-connected disabilities are not the cause of his unemployability. The hearing testimony shows this, as the Veteran and his wife found it nearly impossible to discuss his unemployability without discussing his Alzheimer’s, his heart disabilities, his shoulders, his eyes, or his hands, none of which are service-connected disabilities. While his feet may prevent him from maintaining a job that requires extended standing, his service-connected disabilities do not prevent him from working jobs that do not require excessive amounts of time on his feet. Similarly, the October 2013 VA examiner found that his diastasis recti caused functional impairment in an occupational setting only to the extent that it caused mild pain when lifting and did not require analgesic medication. This evidence is more probative than the January 2010 private opinion on employability, which was offered presuming that the Veteran’s heart disabilities and cognitive symptoms were service-connected. As service connection has not been granted for these disabilities, the opinion has minimal probative value. The Veteran has a high school education with some time in college and experience working as a warehouse supervisor. Since the time that he ceased full time employment he has worked part time as a painter and at a golf course. His supervisory experience qualifies him to work in a setting which would not require extended standing or lifting, the functional impairment caused by his service-connected foot disabilities and diastasis recti. Furthermore, while his hearing loss causes functional impairment, his VA treatment records show that he has adequate hearing when he uses his hearing aids, minimizing any interference with employability. For these reasons the appeal is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.