Citation Nr: 21011691 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-09 782 DATE: March 2, 2021 ORDER A total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis, is denied. FINDING OF FACT For the period on appeal, the Veteran’s service-connected disabilities have not been shown to have precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, to include on an extra-schedular basis, 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 in the Army from August 1961 to July 1963 and service in the National Guard from July 1997 to May 1998. This issue was remanded in December 2020 so that the case could be referred to the Under Secretary for Benefits or Director of Compensation and Pension Service. It is now back before the Board for readjudication. The Veteran is currently seeking entitlement to TDIU based on his service-connected disabilities. 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), she 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). 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). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component 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, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran’s ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran’s history, education, skill, and training; 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. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (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). As stated above, this appeal has already been referred to the Director of Compensation and Pension. The Veteran is currently service-connected for degenerative joint disease (DJD) of the right hip at a 10 percent disability rating; DJD of the left hip at a 10 percent disability rating; limitation of flexion for DJD of the right hip at a noncompensable disability rating; limitation of flexion for DJD of the left hip at a noncompensable disability rating; DJD of the left knee at a 10 percent disability rating; DJD of the right knee at a 10 percent disability rating; and tinnitus at a 10 percent disability rating. He has a combined disability rating of 40 percent from August 3, 2018. Thus, he does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 4.16 (a), 4.25, 4.26. Nevertheless, the Veteran has asserted that his service-connected disabilities have rendered him unemployable. According to the Veteran’s September 2018 VA Application for Increased Compensation Based on Unemployability, he stated he was last employed full time as a plumber in January 2004 as he became too disabled to work. He worked for approximately 24 years as a plumber. Pursuant to the December 2020 Board remand, the Veteran’s TDIU claim was referred to the Director of Compensation Service for extraschedular consideration. In a January 2021 report, the Director of Compensation Service found that the overall evidence failed to support the Veteran’s contention that his service-connected disabilities individually, or in combination of the effects of those disabilities, prevented gainful employment. In her explanation, the Director noted that the veteran was last employed in 2004 as a plumber and did not file for disability through the Social Security Administration. The Veteran’s medical evidence revealed the Veteran was limited in carrying objects that weighed 10 pounds or walking on irregular surfaces. The Veteran also would experience difficulties when moving from sitting to standing, climbing stairs or ladders, and should not participate in high impact activities. The Director conceded that the Veteran’s service-connected conditions did cause functional limitation but the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected disabilities, both individually or collectively. Thus, TDIU on an extraschedular basis was not warranted. The Board’s determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Here, the Board very explicitly explained in a December 2020 remand that it had not specifically analyzed and/or weighed the evidence of employability prior to remanding it so that it could be referred to the Director of Compensation Service. The Board explained that in keeping with the principle that the Board should maximize the Veteran’s benefits, the remand had the benefit of giving the Veteran another proverbial bite of the apple in that a second party will consider the evidence prior to the Board reviewing it. Having now fully reviewed the evidence or record, the Board finds that TDIU is not warranted in this case. According to the January 2020 VA examination of the knee and lower legs, upon a review of the evidence of record, the Veteran’s lay statements, and a physical examination, the VA examiner determined that the Veteran was limited in carrying objects that weighed 10 or more pounds, doing activities that require walking on irregular surfaces, repetitively going from sitting to standing and vice versa, and climbing stairs or ladders. The VA examiner stated the Veteran was limited to sedentary or semi-sedentary type activities and should not participate in high impact activities. The January 2020 VA examination of the hip and thigh conditions similarly indicated that the Veteran’s hips disabilities did not impact his ability to perform any type of occupational tasks. Additionally, the October 2018 VA examination for hearing loss and tinnitus also stated that the Veteran’s tinnitus did not impact ordinary conditions of daily life, including his ability to work. The Veteran has submitted a June 2018 statement from Dr. Mora Quesada who stated that the Veteran was “100 [percent] disable[d]” which was permanent and total in nature and that his service-connected disabilities were “sufficient, without regard of other factors, to prevent performing the mental/physical task required to get or keep “substantially gainful employment.” According to this statement, Dr. Mora Quesada indicated the Veteran has been diagnosed with tinnitus; bilateral sensorineural hearing loss; hypertensive cardiovascular disease; diabetes mellitus, type II; diabetic neuropathy of the upper and lower extremities; dyslipidemia; hypothyroidism; chronic low back pain; DJD of the hips, knees, ankles, and feet; multiple myeloma; dermatophytosis of the feet; and unemployability. Based upon the totality of the foregoing information, the Board finds that the Veteran has not been shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board acknowledges that the Veteran’s service-connected disabilities, particularly DJD of the bilateral knees, might result in some restrictions in type of work that the Veteran would be capable of performing. However, it would not preclude him from obtaining non-manual labor positions, or even manual labor positions with a lighter physical component. The Board further acknowledges the positive opinion from Dr. Mora Quesada in June 2018 that the Veteran was permanent and total in nature as a result of his “service-connected disabilities.” Dr. Mora Quesada indicated that several of the Veteran’s current disabilities (such as bilateral sensorineural hearing loss; hypertensive cardiovascular disease; diabetes mellitus, type II; diabetic neuropathy of the upper and lower extremities; dyslipidemia; hypothyroidism; chronic low back pain; DJD of the ankles and feet; multiple myeloma; and dermatophytosis of the feet) were related to his military service. It appears that the Dr. Mora Quesada referred to these as service-connected disabilities as the Board notes that the Veteran was not actually service-connected for any disabilities at the time of Dr. Mora Quesada’s June 2018 statement. As such, the Board cannot afford Dr. Mora Quesada’s determination probative weight. Rather, the Board finds that the VA examination reports appear to have been based upon comprehensive review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability level, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. Although they undoubtedly produce some impairment, the evidence does not reflect that gainful employment is precluded solely due to the Veteran’s service-connected disabilities. Here, the Veteran’s service connected disabilities impact his lower extremities, but do not generally impact any cerebral functioning. As such, the Board finds that the service connected disabilities alone would not preclude him from learning a new trade, or being able to deploy his knowledge as a plumber. Thus, a TDIU on either a schedular or an extra-schedular basis due solely to the Veteran’s service-connected disabilities is not warranted and the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.