Citation Nr: 21010956 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 07-33 028 DATE: February 26, 2021 ORDER Entitlement to an effective date prior to December 29, 2008 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The weight of the evidence fails to establish that the Veteran was unable to secure or follow substantially gainful employment due solely to service-connected disability prior to December 29, 2008. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to December 29, 2008 have not been met.  38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to September 1993. This matter was last before the Board in October 2020, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. In a January 2021 rating decision, the AOJ granted TDIU effective December 29, 2008. The AOJ also issued a corresponding supplemental statement of the case denying an effective date prior to December 29, 2008 for entitlement to TDIU and returned the effective date issue to the Board for its adjudication. The Board notes that it its previous October 2020 decision it remanded the issues of entitlement to service connection for major depressive disorder as well as insomnia. In a December 2020 rating decision, the AOJ granted service connection for a psychiatric disorder to include posttraumatic stress disorder, major depressive disorder and insomnia, rated together as one disability with a 50 percent rating effective December 29, 2008. The AOJ did not issue any further adjudication as to the service connection insomnia claim; nevertheless, service connection for insomnia was certified to the Board for its adjudication as an issue that remained on appeal, and the Veteran’s representative has presented argument in support of the service connection claim in a January 2021 correspondence. As service connection for insomnia has been granted as a component of the psychiatric disorder addressed in the December 2020 rating decision, there remains no justiciable issue concerning the insomnia claim over which the Board has jurisdiction. Accordingly, the Board instead construes the January 2021 correspondence from the Veteran’s representative as a claim seeking a separate evaluation for insomnia which must be addressed by the AOJ in the first instance prior to being adjudicated by the Board. The claim for a separate service connection grant for insomnia is REFERRED to the Regional Office. As stated previously, following the Board’s previous remand the AOJ in a January 2021 rating decision the Veteran was granted entitlement to TDIU effective December 29, 2008. In setting forth this effective date, the AOJ noted that the Veteran first submitted his claim seeking entitlement to TDIU on December 29, 2008 as part of his separate claim seeking service connection for a psychiatric disorder. Typically, this would be the earliest date for the award of TDIU, as the effective date for a claim is either the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. However, the Board acknowledges that the Veteran had an extant claim seeking an increased rating for both his service-connected cervical spine condition and left wrist ganglion cyst that was filed on August 8, 2006. Per Rice v. Shinseki, 22 Vet. App. 447 (2009), entitlement to TDIU is considered to be part and parcel to any increased rating claim. Accordingly, in affording the Veteran the greatest possible benefit entitlement, the Board will extend the potential effective date for the grant of TDIU back to August 8, 2005, which is one year prior to the increased rating claim detailed above. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU may be assigned when the combined schedular rating for the claimant’s service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. At the earliest point in time under consideration for potential effective date of the TDIU, that is, August 8, 2005, the Veteran was in receipt of a 30 percent rating for degenerative joint disease of the cervical spine and a noncompensable rating for left wrist ganglion cyst, for a total combined 30 percent rating. From August 8, 2006, the Veteran was awarded an increased 10 percent rating for the left wrist ganglion cyst, for a total combined 40 percent rating effective August 8, 2006. Therefore, for the period from August 8, 2005 to December 29, 2008, the Veteran did not meet the schedular requirements for entitlement to PTSD; however, he may still be entitled to referral for consideration of an extraschedular grant of TDIU if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. Bowling v. Principi, 15 Vet. App. 1 (2001). To begin, the Board notes that the United States Court of Appeals for Veterans Claims (Court) recently promulgated additional guidance to assist in the evaluation of claims for TDIU in Ray v. Wilkie, 31 Vet. App. 58, 71 (2019). The Court stated that: “[W]e interpret the phrase “unable to secure and follow a substantially gainful occupation” in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. As for the noneconomic component, the Secretary himself states that ‘determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,’ and ‘the ultimate inquiry is instead on the individual claimant’s ability to secure or follow that type of employment’.” Factors for consideration in evaluating the noneconomic component are: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with possibly relevant factors including, but not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. With regard to the economic component of the Ray analysis, in the Veteran’s formal application for entitlement to TDIU dated in January 2009, he indicated that his spine condition precluded him from securing and following substantially gainful employment. He also reported that his spine condition first affected his full-time employment in 2007 and that he last worked full time in July 2007 as a construction worker, during which he earned $800 per month. This salary is considered marginal as the Veteran’s earned income did not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold in 2007. United States Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed February 24, 2021). The claims file also contains a copy of a July 2009 correspondence from the Veteran’s prior employer, Temar Construction, which indicates that the Veteran worked with the company from February 18, 2008 to August 1, 2008 as a construction worker, and earned $5,337.46 in this time period. Once again, the Board finds that this salary is considered marginal when compared to the 2008 poverty threshold. Taking into consideration the available records regarding the Veterans history of employment, and granting him the benefit of the doubt, the Board concludes that the Veteran met the economic component of a TDIU grant under the guidelines set forth in Ray, as the evidence shows that he was not able to secure and follow substantially gainful employment from August 8, 2005 to December 29, 2008. That being said, referral for extraschedular consideration of TDIU is still not warranted unless the record suggests that this noted unemployability is attributable to the Veteran’s service-connected disabilities during the time period in question. After a thorough review of the record, the Board does not find that the Veteran’s cervical spine condition and left wrist ganglion cyst precluded him from securing and following substantially gainful employment at any point in time between August 8, 2005 and December 29, 2008. Regarding the noneconomic component defined in Ray, the Board notes that on the January 2009 TDIU application the Veteran detailed that he completed four years of undergraduate education and no further education or training. In addition, the Veteran submitted correspondence from the United Stated Postal Service office in Penuelas, Puerto Rico dated in July 2008 that indicates that his application for employment was denied at least in part as due to his service-connected cervical spine and left wrist ganglion cyst conditions. A June 2008 medical assessment attached to the denied application shows that it was determined that the Veteran would be restricted in his ability to lift weight over 35 pounds amongst other limitations that are indiscernible; it was also indicated that there was a high potential for the Veteran to injure himself if he worked as a postal carrier as due to his cervical spine condition. The Veteran was afforded a VA spine examination in November 2004, during which he reported experiencing chronic neck and upper back pain with flare-ups of additional pain lasting up to 2 hours and precipitated by sitting and engaging in overhead physical activities. According to him, when he experienced a flare-up of pain, he took pain medication and rested to alleviate the pain. He also reported that he could walk up to one hour at a time without any problems and was completely independent in self-care and activities of daily living. Thereafter, the Veteran was afforded a more recent VA spine examination in September 2006, during which he reported experiencing chronic severe neck and upper back pain as well as pain radiating down the shoulder and occasional numbness of bilateral upper extremities. He again endorsed experiencing flare-ups of additional pain lasting for several hours and precipitated by sitting, keeping his head stationary, or engaging in overhead physical activities. According to the Veteran, when he experienced a flare-up of pain, he took pain medication and rested to alleviate the pain. The Veteran also reported that he could walk up to 15 minutes at a time before he had to sit down and rest. When queried, the Veteran detailed that he had difficulty putting on his clothes and driving due to neck pain and he also avoided participating in strenuous physical activities. The Board further notes that the Veteran reported that he was participating in higher education studies in order to become a social worker. The Veteran was also afforded a VA examination to evaluate his service-connected left wrist ganglion cyst in September 2006, during which he reported that he had a cystic growth over his left wrist that he had experienced for many years. An evaluation revealed that the growth affected less than one percent of the exposed wrist surface as well as one percent of the entire skin surface. In summation, the examiner found that the left wrist ganglion cyst did not affect the Veteran’s ability to perform his normal daily activities or to engage in a gainful occupation. A review of available post-service medical records shows that the Veteran received treatment for diagnosed degenerative joint disease of the cervical spine for the entirety of the relevant period. An October 2006 note shows that he reported experiencing chronic cervical pain with limited range of motion of his neck and a restricted ability to sit and study for prolonged periods of time. Subsequent VA medical records show continued complaints of chronic cervical pian; however, at no point during the relevant appeal period did any treating medical professional make a determination that the Veteran’s service-connected cervical spine condition and left wrist ganglion cyst together precluded him from securing and following substantially gainful employment. Taken together, this evidence does not illustrate that the Veteran was precluded from engaging in substantially gainful employment by virtue of his service-connected disabilities prior to December 29, 2008. While the question of whether a veteran is capable of substantially gainful employment is ultimately one for the adjudicator (see Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)), the fact that none of the VA examiners who evaluated the nature of the service-connected cervical spine condition and left wrist ganglion cyst during the applicable appeal period found that either condition would preclude the Veteran from securing and following substantially gainful employment is consistent with the rest of the medical evidence of record, and thus the Board considers those examinations to be highly probative. While the records does reflect that the Veteran was hindered in his ability to lift weight above 35 pounds, experienced pain when doing overhead activities, and was restricted in his ability to sit for extended periods of time, this degree of impairment does not suggest that he was precluded from physically performing sedentary, light or even medium work. Furthermore, there is no indication that either of the Veteran’s service-connected disabilities would result in any impairment in his mental ability to work during the relevant appeal period. The Board has considered the Veteran’s assertions that he was unable to work as a result of his service-connected disabilities as early as August 2007. However, the Veteran does not possess training or credentials in medical or vocational matters and, thus, cannot competently opine on the question of whether such symptoms actually rendered him unemployable during the period in question. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). The Board also acknowledges that the Veteran was unemployed at various points in time during the period from August 8, 2005 to December 29, 2008; however, the mere fact that a Veteran is unemployed or underemployed, or has difficulty obtaining employment, is not enough to warrant a grant of TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Indeed, the Court in Ray reemphasized that the question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether such veteran can find employment. In summation, the Board finds the preponderance of the evidence is against a determination that the Veteran’s service-connected disabilities precluded him from securing and following substantially gainful employment from August 8, 2005 to December 29, 2008. The appeal will not be referred for extraschedular consideration, and as such, it must be denied. See 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.