Citation Nr: 21007791 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-08 867 DATE: February 10, 2021 ORDER From July 10, 2012, to May 12, 2014, a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDING OF FACT From July 10, 2012, to May 12, 2014, the Veteran did not meet the schedular rating criteria for a TDIU, and his service-connected disabilities were not shown to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW From July 10, 2012, to May 12, 2014, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1970 to August 1978. In connection with this appeal, the Veteran testified at a hearing before Veterans Law Judge (VLJ) Parakkal in July 2011. A transcript of that hearing is of record. In a March 2015 decision, the Board remanded the matter for further development. The Veteran testified at a second hearing before VLJ O’Shay in February 2017. A transcript of that hearing is of record. Generally, VLJs who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when a veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. The Court has interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In September 2017 correspondence, the Board explained to the Veteran and his representative that in light of the separate hearings, the issue at hand would be decided by a panel of three VLJs, and that the Veteran therefore was entitled to a third Board hearing with respect to the third VLJ to be assigned to the panel. The Veteran was requested to indicate whether he in fact desired a third hearing, or whether he waived his right to a hearing before the third VLJ. He was further advised that if he did not respond within 30 days, the Board would assume he did not want a third hearing. The Veteran never responded to the September 2017 correspondence. Therefore, the Board finds that there is no hearing request pending at this time and the Board has complied with the requirements set forth in Arneson. See id; 38 C.F.R. § 20.700(a). The Board remanded this appeal in August 2018. The actions requested by the Board in that remand have been accomplished. TDIU from July 10, 2012, to May 12, 2014 Total disability will be considered to exist 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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 or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In November 2020, and pursuant to the Board’s August 2018 remand, the Executive Director of Compensation Services denied a TDIU on an extraschedular basis prior to May 12, 2014. As the Director has considered the issue in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). In May 2014, the Veteran asserted entitlement to a TDIU. In a May 2014 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran reported that his right neck scar prevented him from securing or following any substantially gainful employment. He indicated that he last worked full time in May 2012 in aircraft maintenance. He indicated that he left his employment due to his disabilities. He indicated that he had two years of college education. In February 2017, the Veteran testified that he missed work due to his lumbar spine disability. He testified that he was unable to function due to medications for his lumbar spine disability. He testified that he could not sit or stand more than 30 minutes. In a May 2017 VA Form 21-8940, the Veteran indicated that he last worked in July 2012. He reported that he had applied and was granted Social Security Administration (SSA) disability benefits in December 2012. A July 2017 rating decision granted the Veteran a TDIU from May 13, 2014. In an August 2018 Board decision, a TDIU from December 25, 2008, to July 9, 2012, was denied, and the Board remanded the issue of entitlement to a TDIU from July 10, 2012, to May 12, 2014, for further development. From July 10, 2012, to May 12, 2014, the Veteran was service connected for a neck scar under Diagnostic Code 7800 rated at 10 percent disabling prior to November 6, 2012, and 30 percent disabling afterwards; a neck scar under Diagnostic Code 7804 rated at 10 percent disabling from November 6, 2012; a lumbar spine disability rated at 10 percent disabling from November 1, 2012; right lower extremity radiculopathy rated at 20 percent disabling from November 1, 2012; and a back scar rated at a noncompensable rating from November 1, 2012. From July 10, 2012, to November 1, 2012, the Veteran’s combined disability rating was 10 percent. From November 1, 2012, to November 6, 2012, the Veterans combined disability rating was 40 percent. From November 6, 2012, to May 12, 2014, the Veteran’s combined rating was 60 percent. As such, the Veteran did not meet the schedular rating criteria for a TDIU from July 10, 2012, to May 12, 2014. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. A review of the competent evidence of record, which includes the Veteran’s medical records, his lay statements, the opinions of VA examiners, and the opinion of SSA medical consultant, when taken in total, does not suggest unemployability as a result of his service-connected disabilities from July 10, 2012, to May 12, 2014. The Veteran’s medical records show that he experienced a work-related back injury in October 2008. On a September 2012 SSA disability form, the Veteran reported that he did light housekeeping, went shopping, cared for his pets, drove very little, attended church and related functions, and tried to be active in church activities. He reported that he tried to get out at least once a day. He reported that he could lift no more than 15 pounds, could not sit or stand for extended periods of time, and that his medications affected his memory and concentration. In November 2012, the Veteran was afforded a VA examination for his neck scar. The examiner reported that the Veteran’s neck scar did not impact the Veteran’s ability to work. In January 2013, the Veteran was granted SSA disability benefits effective May 23, 2012, based on his severe impairments of a lumbar spine disability, obesity, and hyperalimentation. In January 2013, SSA medical consultant Dr. M-S completed a Physical Residual Functional Capacity Assessment. Dr. M-S determined that the Veteran was limited to lifting and carrying 10 pounds occasionally and less than 10 pounds frequently; the Veteran could stand and/or walk at least two hours and sit about six hours in an eight-hour workday; and the Veteran could never climb ladders, ropes, and scaffolds, and could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. In March 2013, the Veteran was afforded a VA examination for his lumbar spine disability. He reported that he was laid off from work on July 9, 2012, and that he received SSA disability benefits. The examiner reported that the Veteran was limited in bending, lifting, and weight bearing. The Board finds that the evidence as a whole does not establish that his service-connected disabilities precluded him from securing and maintaining substantially gainful employment for the period from July 10, 2012, to May 12, 2014. While the Veteran reported that he was unable to work due to his neck scar in May 2014, the November 2012 VA examiner reported that the Veteran’s neck scar did not impact his ability to work, the Veteran has not otherwise shown any significant impact of the scar on employability, and the evidence does not support the Veteran’s assertions concerning the impact of the neck scar on employability. In January 2013, Dr. M-S reported that the Veteran was limited to lifting and carrying 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk at least two hours and sit about six hours in an eight-hour workday, never climb ladders, ropes, and scaffolds, and occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. This is consistent with the findings of the March 2013 VA examiner that found that the Veteran’s lumbar spine disability limited the Veteran’s bending, lifting, and weight bearing. In addition, it is also consistent with the September 2012 Veteran’s report to SSA that he did light housekeeping, went shopping, cared for his pets, drove very little, attended church and related functions, tried to be active in church activities, tried to get out at least once a day, could lift no more than 15 pounds, could not sit or stand for extended periods of time, and that his medications affected his memory and concentration. While the Veteran was awarded SSA disability benefits, he was awarded SSA disability benefits based, in part, not only on his lumbar spine disability, but also on his obesity and hyperalimentation, which are not service-connected disabilities. Thus, while an SSA determination is evidence to be considered by the Board, the Board is not bound by any SSA determination, as SSA disability determinations are governed by a set of laws and regulations that do not pertain to VA benefits. In this case, the Board finds that the nonservice-connected disorders on which the SSA disability determination was partially based have a substantial enough impact on employability as to render the SSA disability determination of limited probative value. As such, the evidence does not establish that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities from July 10, 2012, to May 12, 2014. While the Veteran may have been unable to perform his past work in aircraft maintenance, the Board finds that the service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment, consistent with the findings of the VA examiners and SSA medical consultant, such as a job that involved 6 hours a day with minimal lifting, and some restrictions in standing, sitting and walking, and in climbing. Based on the Veteran’s reports that he was unable to sit or stand for long periods of time, the Veteran would have been limited to employment that would allow him to alternate sitting and standing at will. Based on the Veteran’s reports of his medications affecting his memory and concentration, the Veteran would have been limited to simple, unskilled tasks. Accordingly, the Veteran would have been able to sustain substantial gainful activity as a store greeter, a surveillance system monitor, a call-out operator, and washroom operator, among other jobs. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. After reviewing the evidence and the Veteran’s assertions, the Board finds that his service-connected disabilities are not shown for the pertinent period to impact on his employability to the extent that they render him unable to obtain or maintain gainful employment. Accordingly, from July 10, 2012, to May 12, 2014, a TDIU on an extraschedular basis is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals THOMAS H. O’SHAY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.