Citation Nr: 21008465 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-47 368 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based upon unemployability (TDIU) is denied. REFERRED The issue of entitlement to an increased initial rating for hemorrhoids is referred to the Agency of Original Jurisdiction (AOJ) for additional development. As explained in the June 2019 remand, the Board required a supplemental statement of the case (SSOC) to clarify the period on appeal such that the Veteran and his representative were on notice of the procedural posture of the case: in essence, that the claim for an initial rating has been pending since October 2003. Two SSOCs were issued, one in June 2020 and one in November 2020. After the June 2020 SSOC, in July 2020, the Veteran filed a supplemental claim application for his claim for an increased rating for hemorrhoids. The Veteran cited the June 2020 SSOC in his supplemental claim application. In response, the AOJ sent the Veteran a letter that his claim was already on appeal and therefore he could not file a supplemental claim. However, as part of the Appeals Modernization Act (AMA) process, the Veteran may opt-to file a supplemental claim and remove the claim for the Legacy system. 38 C.F.R. §§ 19.2, 3.2400, 3.2500(a)(2). The Veteran indicated his desire to do so. Given this, the Veteran’s claim for an increased initial rating for hemorrhoids is no longer on appeal in the Legacy system and the Board does not have jurisdiction over it. The AOJ should issue a rating decision on the Veteran’s supplemental claim and note that it covers the period from October 2003. FINDING OF FACT The Veteran’s service-connected disabilities have not prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from March 1961 to February 1964. In April 2019, the Veteran and his wife testified at a videoconference hearing in Houston, Texas, before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran’s claim was most recently before the Board in June 2019 wherein the Board remanded the Veteran’s claim as it was intertwined with the issue of an increased rating for hemorrhoids. As explained in the Referral section above, the Veteran’s claim for an increased initial rating for hemorrhoids entered the AMA process and is no longer pending in the Legacy system; thus, his claim is no longer on appeal before the Board. As explained below, the Board finds that the Veteran is not currently entitled to a TDIU. While an increased rating for hemorrhoids could later affect a claim for a TDIU, the Board is constrained to adjudicate entitlement based on the current ratings of record because it is the only claim still pending in the Legacy system. Given that the Veteran’s increased rating claim is pending an AMA rating decision and TDIU was raised in connection with that claim, if the Veteran’s rating changes, he is not prejudiced because a claim for a TDIU is still pending along with the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). Entitlement to a TDIU The law provides that a total disability rating 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 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. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Factors to be considered in determining whether unemployability exists are the Veteran’s education, 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 non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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 Board notes that after entitlement to a TDIU was remanded, the AOJ requested the Veteran submit information to assist his claim, to include the completion of VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The AOJ sent a second request for information. However, the Veteran did not submit any additional information regarding his education or work history. From October 30, 2003 to August 25, 2020, the Veteran had a combined 40 percent rating for the following service-connected disabilities, to wit: post-traumatic changes of the left hand with movement abnormalities, rated at 20 percent; and 10 percent ratings each for a right knee disability, tinnitus, and internal hemorrhoids. (The Board notes that while a 30 percent rating is contemplated for status-post right knee replacement effective October 1, 2021, that is a future rating and does not affect the current determination). As such, the Veteran does not meet the schedular requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) at any point during the period on appeal. However, a TDIU evaluation can still be awarded if it is established by the evidence of record that service-connected disabilities have rendered the Veteran unable to secure and follow substantially gainful employment. The Board does not so find. The two disabilities resulting in the greatest functional impact are the Veteran’s left hand and right knee disabilities. Even so, based on the current evidence, there is no limitation on the Veteran’s ability to sit, lift light objects, manipulate larger objects with his hands (but not requiring fine dexterity), interact with others, or follow directions. While the Veteran has decreased movement of his left hand, he is right-hand dominant, his hand was injured in 1962 and he worked for 40 years thereafter. Given this, the Board does not find that the Veteran would be precluded from performing low-skill work such as a help desk or parking lot attendant. While the Veteran did not identify his vocational and educational profile, from his testimony, he was employed as a truck driver for 40 years and had some sort of security clearance. Given this, his work and educational history would not preclude this type of work. Therefore, he is not unemployable; his service-connected disabilities have not rendered him unable to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (in a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator); see also Gilbert, supra. Therefore, the entitlement to a TDIU is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.