Citation Nr: 21011431 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-53 624A DATE: March 1, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The service connected disabilities have not rendered the Veteran unemployable. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1982 to September 1985. A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate, “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 (a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection is in effect for right shoulder disability (30 percent), lumbar spine disability (10 percent prior to June 24, 2015, and 20 percent thereafter), radiculopathy of the left lower extremity (20 percent from June 24, 2015), radiculopathy of the right lower extremity (10 percent from September 11, 2013, and 20 percent from August 14, 2015), cervical spine disability (20 percent from September 13, 2017), radiculopathy of the upper extremities (20 percent for each from September 13, 2017). The Veteran has a combined rating of 40 percent from August 10, 2011, 60 percent from June 24, 2015, 70 percent from August 14, 2015, and 90 percent from September 13, 2017. In October 2020, the Veteran filed a VA form 21-8940, reporting inability to secure or follow substantially gainful employment due to arms, shoulder, neck, and back. He reported that he last worked full time in April 2016. VA treatment and examination records reveals histories of working until approximately October 2016, and the Social Security Administration (SSA) records report that the Veteran worked until October 2016. The Board finds the SSA records and treatment records provided more contemporaneous with 2016 are more probative in determining the date the Veteran stopped working. The Veteran has not contended that his employment was marginal or in a protected environment, and the Board finds there is no probative evidence to that effect. Thus, the Board finds a TDIU is not warranted prior to “October” 2016 because the Veteran is gainfully employed during that period. The Board will consider entitlement to a TDIU from “October” 2016. An August 2015 VA examination record reveals the examiner’s determination that the lower back disability would cause mild to moderate impairment in performing sedentary activity of employment and moderate to severe impairment in performing physical activity of employment. An April 2017 VA examination record indicates that the shoulder disability would result in occupational impairment due to inability to lift arm overhead or do repetitive or heavy lifting. The record indicates that the Veteran ceased his last job because his supervisor wanted him to hang doors and it was too strenuous on the Veteran’s shoulders. A June 2018 private medical record reports that the Veteran had bilateral hand numbness and neck and shoulder pain and that the pain limited the Veteran from sleeping, climbing stairs, working, driving, and doing household chores, recreational activities, and family activities. An August 2018 follow-up record reveals that post-surgical treatment, the Veteran had no complaints of new numbness, tingling, weakness, or pain and that his strength was “feeling great,” though he remained a bit spongy in his interosseous muscles and finger extensor muscles. A September 2019 VA “spine” examination record reports that the thoracolumbar spine disability would result in decreased tolerance for bending and lifting. A September 2019 VA “shoulder” examination record reports that the shoulder disability would result in decreased ability to lift and reach overhead with the right arm. An October 2020 VA “shoulder” examination record reports that the right shoulder disability would result in difficulty with lifting, pulling, and pushing. An October 2020 VA “spine” examination record reports that the thoracolumbar spine disability would result in difficulty with prolonged walking, sitting, and standing. An October 2020 VA “peripheral nerve” examination record reports that the radiculopathies would result in poor endurance with walking, standing, and sitting and decreased grip strength when symptom present. The record reports a history of symptoms of neuropathy twice per month, depending on activity. Records from the SSA reveals the determination that the Veteran was disabled as of December 10, 2018, but not earlier. The records reveals the finding that the Veteran had the residual functional capacity to perform light work prior to December 10, 2018, though the Veteran would need accommodations to alternate between standing and sitting every 30 minutes, and that although the Veteran would be unable to perform past relevant work as generally performed, there were jobs that existed in significant numbers that the Veteran could have performed, such as a router, order caller, marker, or inspector. The records additionally report that the Veteran was determined to be disabled as of December 10, 2018, because his age category changed. The Board finds the probative evidence does not suggest that the service-connected disabilities rendered the Veteran unable to obtain or maintain substantially gainful employment as defined by VA to warrant a TDIU. VA examination and treatment records do not indicate impairment sufficiently significant to result in unemployability, and it was only after the Veteran changed age categories that he was considered “disabled” for SSA purposes. As noted above, consideration may not be given to a veteran’s age in determining entitlement to a TDIU. Although there is a private finding of “limitation” of work due to the cervical spine disability, pre-surgical treatment, there is a distinction between “limitation” and inability, and the Board finds the record does not support a finding of unemployability due to service-connected disability. In sum, the Board finds that although the service-connected disabilities result in impairment or “limitation” of occupational functioning, the probative evidence does not suggest that the service-connected disabilities have rendered the Veteran unable to obtain or maintain substantially gainful employment. The Board finds the record does not suggest that the Veteran would have been unable to obtain or maintain a position that did not involve heavy lifting and allowed position changes, such as an inspector or positions associated with a call or information center due to service-connected disabilities. The Board has considered the doctrine of reasonable doubt in reaching this decision as well but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thus, the claim is denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.