Citation Nr: 21010873 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-01 175 DATE: February 25, 2021 ORDER For the period from July 8, 2008 forward, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT For the period from July 8, 2008 forward, the Veteran was not unable to obtain or maintain substantially gainful employment as a result of the service-connected disabilities. CONCLUSION OF LAW For the period from July 8, 2008 forward, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1992 to September 1994. The Veteran declined a Board of Veterans’ Appeals (Board) hearing on the November 2011 VA Form 9, Appeal to the Board. In January 2019, the Board remanded the issue of a TDIU for referral to the Director of Compensation and Pension Service. The referral and related adjudication has been completed, and the case is again before the Board. TDIU Legal Authority Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral to the Director of Compensation and Pension Service are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” 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 a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that in this case VA met the duties under the VCAA to notify and assist. In this case, neither the Veteran nor the representative has raised specific contentions regarding VCAA duties. TDIU from July 8, 2008 Forward is Denied. The Veteran asserts that the service-connected left shoulder disability prevents him from securing or following substantial gainful employment. See January 2013 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran indicated that he last worked full time as a satellite technician in July 2008. Service connection has been granted for left shoulder separation rated as 20 percent disabling from September 1, 1996 forward, and for left shoulder surgical scarring associated with left shoulder separation, rated as non-compensable (0 percent) from December 18, 2012 forward. Because there is not one service-connected disability rated at least 60 percent, or one service-connected disability rated at least 40 percent with a minimum combined rating of at least 70 percent for all service-connected disabilities, the service-connected disabilities do not satisfy the threshold combined disability rating percentages requirement for consideration of TDIU for this period. 38 C.F.R. § 4.16(a). For this reason, the issue of TDIU was referred to the Director of Compensation and Pension Service for consideration of a TDIU under 38 C.F.R.§ 4.16(b). In a memorandum dated November 2020, the Director of the VA Compensation Service denied a TDIU under 38 C.F.R. § 4.16(b). See Bagwell v. Brown, 9 Vet. App. 337 (1996); VAOPGCPREC 6-96. Because the appeal for a TDIU under 38 C.F.R. § 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides 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. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation & Pension is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding that the Veteran is rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected disabilities for the entire period on appeal. The degree of occupational and functional impairment caused by the service-connected disabilities is contemplated by the combined schedular disability rating of 20 percent from September 1996 forward. Regarding the Veteran’s employment history, a December 2012 VA Form 21-8940 shows that the Veteran has worked as a jail officer and as a satellite technician. Regarding the Veteran’s educational history, a May 2013 college transcript shows that the Veteran has earned some college credits. The December 2012 VA Form 21-8940 also shows that the Veteran has completed one year of college. The Board has carefully considered the September 2008 statement by a private examiner that “The Veteran is totally disabled for use of his left shoulder. He is not able to use this shoulder to lift anything past 10 pounds. This affects his daily living and working capabilities.” A September 2008 private examiner wrote that the Veteran “is prevented from obtaining or maintaining employment that requires prolonged use of his arm, overhead work, or heavy lifting” and that the Veteran may be “best suited for employment which is performed in a fairly autonomous fashion.” The private examiner explained that the Veteran’s impairment from the left shoulder disability is inability to raise the arm above the head or lift heavy objects, such that the Veteran needed to avoid situations involving the left shoulder. A December 2008 vocational rehabilitation counseling record states, “At this time, the achievement of a vocational goal for this Veteran is currently feasible . . . the Veteran’s current situation would suggest that currently the Veteran is capable of achieving suitable employment.” An August 2009 physical medicine rehabilitation note shows that the Veteran had not been working since July 2008 when he had been installing TV satellites, and was unable to do that form of work anymore due to difficulty with lifting/carrying ladders and heavy equipment, limited neck range of motion, tingling in the bilateral lower extremity with cervical forward flexion, and other physical symptoms. In a March 2009 statement, the Veteran stated that, in addition to shoulder impairment, problems with his (non-service-related) neck disorder hinder his employment. Specifically, the Veteran wrote, “I find these problems with my neck and shoulder to be safety concerns for the employment I have had all of these years.” The Veteran also points to other non-service-connected impairment of the back and lower extremities that limit function and impair his ability to perform work tasks. The Veteran wrote, “standing for long periods of time causes pain in my neck and back. I cannot sit without pain for any amount of time. Lifting and carrying things causes pain in my back and neck. Sometimes it causes my shoulder to go out and my left arm to go weak for several minutes… Lifting and climbing is impossible with these conditions because of the pain and shoulder giving out on me intermittently.” An October 2010 Social Security Administration disability decision states that the Veteran “has the following severe impairments: neck pain and status post left shoulder surgery, degenerative disc disease (lumbar spine), and chronic pain syndrome.” The Board notes that the Veteran is not service connected for a neck disability, degenerative disc disease of the lumbar spine, or chronic pain syndrome – all disabilities that, in addition to the service-connected left shoulder disability, formed the basis of the Social Security Administration’s disability decision. A December 2012 VA examiner assessed that the Veteran’s left shoulder “has no specific work restrictions, but the Veteran says he has difficulty with range of motion and overhead work.” The VA examiner further explained that the Veteran has non-service-connected disabilities that predominantly limit his occupation, including lumbar degenerative disease with a fusion 1-2 years ago, which prevents him from being able to lift more than 50 pounds. On a December 2012 VA Form 21-8940, the Veteran reported that both a left shoulder disability and depression from nonstop pain prevent him from securing or following a substantially gainful occupation. As the Board notes that the Veteran is not service connected for depression or any acquired psychiatric disorder, such psychological symptoms and occupational impairment may not be considered in deciding a TDIU. An October 2015 vocational rehabilitation record shows that at last contact with the Veteran, the Veteran was employed. A July 2016 VA examination for mental disorders shows that the Veteran reported that he was able to find work at a factory after one or two years on Social Security Disability benefits, and that this work has not been too physically taxing and that he has done well. A July 2016 VA examination for a shoulder disability shows that “the Veteran has mild limitation of range of motion of the left shoulder and pain with heavy lifting. This will cause some limitation of his ability to function in an occupational environment that requires heavy lifting or working overhead. However, these conditions should not limit… work such as desk work.” The Board has carefully considered the Veteran’s assertion that lifting and climbing are required for the job that he previously held as a satellite technician; however, the Board finds that while the Veteran experiences some level of impairment from the service-connected shoulder disability and may no longer be able to work as a satellite technician, the evidence does not show that the Veteran is prevented from securing or maintaining any substantially gainful occupation solely by reason of the service-connected shoulder disability. The evidence in this case shows significant non-service-connected disabilities of the neck, low back, and lower extremity that hinder the Veteran’s ability to perform occupational tasks. While the Board finds that the Veteran experiences some occupational impairment as a result of the service-connected disabilities, this impairment is contemplated by the currently assigned 20 percent combined overall rating, which recognizes the specific functional limitations of each disability. The shoulder disability precludes overhead lifting and heavy lifting. The impairment from the service-connected disabilities does not preclude the Veteran from securing or maintaining a substantially gainful occupation. Having reviewed and carefully considered all of the evidence of record, both lay and medical, the Board finds that the criteria for a TDIU have not been met for any period on appeal. The evidence reflects that the Veteran was not precluded from securing or maintaining substantially gainful employment by reason of the service-connected disabilities. Rather, multiple evaluations during the period on appeal, including an October 2015 vocational rehabilitation record and a July 2016 VA examination show that the Veteran was and is capable of securing and maintaining employment despite experiencing limitation in function due to the service-connected left shoulder disability. The record also shows significant functional limitations due to diagnosed but non-service-connected disabilities of the neck, back, and lower extremity. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.