Citation Nr: 21010338 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-08 447 DATE: February 24, 2021 ORDER Entitlement to total disability rating based on individual unemployability as a result of service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability (TDIU) as a result of service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to July 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified at a Board hearing. In June 2012, the Veteran was informed that the Veterans Law Judge who conducted the March 2011 hearing was no longer employed by the Board. Per the Veteran’s request, he was afforded another Board hearing in October 2012 before the undersigned. Transcripts of both proceedings are of record. The May 2017 Board decision remanded the issue of TDIU as raised by the record in an increased rating claim, since the Veteran reported that he could not work anymore due to his problems of standing and walking. The Board finds that VA properly developed the issue of TDIU by asking the Veteran to submit additional information to help support his claim for TDIU. However, because VA did not issue a Supplemental Statement of the Claim (SSOC) for the issue of TDIU, the November 2020 Board decision remanded the issue again to obtain a SSOC. The Board finds that VA properly followed the instructions and the issue is properly before the Board for adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2020 Board decision granted an increased rating to a 10 percent disability rating, but no higher, from September 24, 2008 for thrombophlebitis of the right lower extremity. It also denied a compensable rating prior to September 24, 2008 for thrombophlebitis of the right lower extremity. VA subsequently issued a rating decision in November 2020 granting a 10 percent disability rating from September 24, 2008 for thrombophlebitis of the right lower extremity. An SSOC was issued on the same day, but only for TDIU. In the January 2021 appellate brief, submitted by the Veteran’s representative, the issue of an increased rating for thrombophlebitis of the right lower extremity was argued claiming that the RO erred when it denied a compensable rating prior to September 11, 2014, and in excess of 10 percent rating thereafter. The Board finds that it does not have jurisdiction over the increased rating issue since there has been no appeal to the Board regarding it. It is not even clear that the Veteran could appeal that rating action, given that it was merely implementing the Board’s decision. TDIU 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 non-service 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds, first that the Veteran does meet the schedular requirement for TDIU starting from February 11, 2019. He is currently service-connected for total right knee replacement and degenerative joint disease with a 10 percent disability rating from September 22, 1997, 100 percent disability rating from January 2, 2007, and 30 percent disability rating from March 1, 2008; internal derangement of the right knee with a 0 percent disability rating from May 1, 1970 to January 2, 2007; T4 vertebrae healed fracture with a noncompensable disability rating from July 22, 1966 and a 20 percent disability rating from March 27, 1998; spinal stenosis with degenerative arthritis of the spine with a 10 percent disability rating from February 29, 2008 and a 20 percent disability rating from February 11, 2019; right lower extremity radiculopathy with a 20 percent disability rating from February 11, 2019; left lower extremity radiculopathy with a 20 percent disability rating from February 11, 2019; right lower extremity thrombophlebitis with a noncompensable disability rating from February 23, 1970 and a 10 percent disability rating from September 24, 2008; right hand thumb rheumatoid arthritis with a 10 percent disability rating from February 11, 2019; left hand thumb rheumatoid arthritis with a 10 percent disability rating from February 11, 2019; left hand long finger rheumatoid arthritis with a 10 percent disability rating rom February 11, 2019; left hand index finger rheumatoid arthritis with a 10 percent disability rating from February 11, 2019; right hand long finger rheumatoid arthritis with a 10 percent disability rating from February 11, 2019; and right hand index finger rheumatoid arthritis with a 10 percent disability rating from February 11, 2019. The Veteran’s total combined evaluation is noncompensable from July 22, 1966; 20 percent from May 1, 1970; 30 percent from September 22, 1997; 40 percent from March 27, 1998; 100 percent from January 2, 2007; 50 percent from March 1, 2008; 60 percent from September 24, 2008; and 90 percent from February 11, 2019. Thus, he meets the minimal schedular requirement for a TDIU starting February 11, 2019. However, notwithstanding this, the Board finds that the Veteran has failed to establish that he is unable to obtain substantially gainful employment due to his service-connected disabilities. The Veteran asserts that his service-connected disabilities render him unable to obtain and sustain employment. However, even though VA requested that the Veteran submit an application for TDIU to provide VA information regarding the Veteran’s TDIU claim, the Veteran has yet to submit this form. Additionally, the Veteran has not submitted any information regarding his employment or why he retired. The only employment information is from the Veteran’s VA examinations discussing functional impact. The Veteran’s post-service medical records note that after separating from military service he was a supply clerk from 1966 to 1970 and a civil service employee for customs from 1970 to 1995. The records report that the Veteran retired in 1995, but that according to an August 1998 VA examination he started as a golf starter at a golf course. In a February 2007 private treatment record, the examiner found that the Veteran was totally disabled from work at that time due to his right knee disability and that he would be reevaluated in the next month. In a February 2007 VA examination, the examiner found the Veteran able to walk without difficulty. In the March 2011 Board hearing, the Veteran reported that he cannot walk more than 50 to 100 feet and that his calf starts swelling at 75 to 100 feet. He reported that he could stand for 30 minutes and sit for an hour before the swelling starts. He explained that socks over the calves help. He complained that he could not work anymore because of problems with standing and walking as he was a customs agent supervisor. He also verified that he gets money from the Social Security Administration due to his age and not due to any disability. In the September 2014 VA hip and thigh examination, the examiner noted that the Veteran has been retired for about 20 years and that his hip disability impacts his ability to work since he cannot partake in prolonged walking, standing, or repetitive weight bearing activities. The May 2017 Board decision remanded the issue of TDIU to allow the Veteran the opportunity to submit additional evidence or argument for his claim. VA subsequently requested the Veteran to fill out an Application for Increased Compensation Based on Unemployability and to also provide the form Request for Employment Information in Connection with Claim for Disability Benefit. The Veteran did not submit any information to assist VA in obtaining more information regarding his occupational history. In the May 2019 VA back examination, the examiner noted that the Veteran was retired, lost zero to one week of work in the last 12 months, and is limited with walking and standing. The examiner further reported that the Veteran was unable to run and had an inability to sleep consistently throughout the night due to radicular pain. The examiner also noted that the Veteran was limited with weight bearing and physical activity. In the August 2019 VA hand and finger examination, the examiner claimed that the Veteran’s hand disability impacts his ability to do occupational tasks. The examiner specified that the Veteran was unable to push and pull more than five pounds, lift and carry more than five pounds, use tools like screwdrivers and hammers repetitively for more than five minutes, and to hold the car wheel and drive for more than an hour all due to his hand pain. In the August 2019 VA knee examination, the examiner claimed that the Veteran’s knee disability impacts the Veteran’s ability to do occupational tasks like stand and walk for more than five minutes. He also reported that the Veteran could not sit in one place for more than 30 minutes due to his knee pain. The examiner further reported that the Veteran could not run, squat, or climb due to his knee pain. The Board finds that there is insufficient evidence to support the Veteran’s contention that he could no longer obtain a substantially gainful occupation as a result of his service-connected disabilities. As stated above, the record reflects that the Veteran meets the schedular criteria for assignment of a TDIU. However, the Veteran stopped working and decided to retire in 1995 on his own will and not due to his service-connected disabilities. Thereafter, the record does not demonstrate that he was unable to secure or follow a substantially gainful employment as a result of his service-connected disabilities. In this regard, the VA examinations and medical treatment records establish that his multiple service-connected disabilities did not prevent sedentary or physical employment prior to, during, or after the Veteran’s consistent years of employment. While the VA examiners did not opine as to what type of occupation the Veteran was capable of, they did describe how the Veteran had difficulty walking, standing, sitting, and driving for too long. While it appeared that it would be difficult for the Veteran to secure or follow any occupation that had a physical demand, there was no indication that the Veteran would be unable to do work in an office that involved very little to no manual labor, including supervisory and clerical tasks. The Board finds that the VA examinations are the most probative evidence of record. The VA opinions reflect a comprehensive, accurate, and reasoned review of the entire evidentiary record. The VA examiners reviewed the Veteran’s entire claims file which included STRs, considered his lay statements, and examined his post-service medical treatment records. After all this, the examiners provided a thorough rational supporting their opinions. Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinions are based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiners have the skill and expertise to analyze the medical evidence and render an opinion on whether an individual’s service-connected disabilities preclude them from attaining substantially gainful employment. See Black v. Brown, 10 Vet. App. 279, 284 (1997). Moreover, the Board notes that the Veteran demonstrated the ability to obtain and maintain employment since he separated from service prior to voluntary retirement consistent with his education and experience. The record even supports that after retiring from his job at customs, he was subsequently employed as a golf starter at a golf course. No VA examiners opined that the Veteran retired as a result of his service-connected disabilities. In finding that the Veteran’s service-connected disabilities did not cause him to be unemployable, the Board has considered the lay statements from the Veteran and his representative, all submitted in support of the Veteran’s claim, indicating in pertinent part complaints of his service-connected disabilities and the general inability to work. However, the Board has determined that the medical evidence provided by the VA examiners is more probative of the issue, and that it outweighs these lay statements. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In addition, the Board finds the VA examinations and opinions of record to be highly probative, as they are each shown to have been based on a review of the claims file and accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board cannot say whether the Veteran can in fact secure any office job, but the medical evidence of record supports the fact that the Veteran is capable of obtaining such a job and his service-connected disabilities do not preclude him from doing so. As stated by the VA examiners, the Veteran is not unemployable due to his service-connected disabilities and given his educational and occupational history, the Board finds that the Veteran is capable of finding substantially gainful employment, despite his sincerely held beliefs that he is unable to do so. The Board has also considered the lay statements of the Veteran. Lay persons are competent to provide opinions on some medical issues, such as symptoms that they observe. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue of whether the Veteran’s service-connected disabilities render him unable to secure or maintain substantially gainful employment is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record, the Board ultimately affords this evidence little weight to the Veteran’s sincerely held beliefs as to why he thinks that he is unemployable. Because he is not a medical professional and therefore lacks the required expertise regarding whether his service-connected disabilities impact his employability, the Board cannot place much probative value on those statements. Based on the above, the Board finds that the preponderance of the probative evidence indicates that the Veteran’s service-connected disabilities do not render him incapable of employment consistent with his education and work experience. Therefore, a TDIU is not warranted. Upon review of all of the evidence of record, both lay and medical, the Board finds that referral for an extraschedular consideration of a TDIU is not warranted. The Board has acknowledged and considered the Veteran’s lay statements addressing his employability. The Board notes that the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, the Board emphasizes that the Veteran’s description of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. The Board finds that the weight of the evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. Accordingly, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate 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.