Citation Nr: 21012638 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-16 333 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to February 15, 2019 is denied. FINDING OF FACT The Veteran was not prevented from securing or maintaining substantially gainful employment due solely to his service-connected left hip disability prior to February 15, 2019. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to February 15, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2008 to January 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2009 and April 2013 rating decisions issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Denver, Colorado, RO has jurisdiction of the current appeal. This case was previously before the Board in December 2015, October 2017, April 2019, and January 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After undertaking the development requested, the AOJ issued a Supplemental Statement of the Case and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU prior to February 15, 2019 The Veteran seeks entitlement to TDIU. He contends that he has been unable to work since January 2009. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 15, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the 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 to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to February 15, 2019, the Veteran was service-connected for degenerative joint disease of the left hip, rated as 10 percent disabling; limitation of extension of the left hip, rated as 0 percent disabling; and impairment of the thigh associated with left hip, rated as 0 percent disabling. His combined disability rating was 10 percent. Thus, he did not meet the schedular criteria for TDIU at any time prior to February 15, 2019. However, where a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, permitting him to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a); see also Moore (Robert), 1 Vet. App. at 358. Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. 38 C.F.R. § 4.16(a). To receive a TDIU, a veteran’s service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. In determining whether a veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). See also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether a veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran asserted in his December 2009 NOD that he had very limited mobility on his left side, that his left hip condition requires treatment with medications and steroid injections, and that it leaves him unemployable. He further stated in his June 2011 VA Form 9 that his injury had worsened in severity, that the condition required injections for pain every three months, and that he had been found disabled by the Social Security Administration (SSA). The Veteran was afforded a VA examination August 2009. He reported flare-ups related to popping of his left hip, which happened several times per day, as well as pain with weight-bearing and twisting. On examination, the Veteran had hip flexion from 0 to 100 degrees, with pain between 70 and 100 degrees. He had external rotation of 0 to 50 degrees, with pain between 45 and 50 degrees. He had internal rotation from 0 to 20 degrees, with pain between 10 and 20 degrees. He had adduction from 0 to 10 degrees, with pain between 5 and 10 degrees. He had abduction from 0 to 45 degrees, with pain between 30 and 45 degrees. He had extension from 0 to 10 degrees, with pain between 5 and 10 degrees. The examiner noted that it was possible the Veteran would experience additional functional limitation following repeated use, but was not able to express this in terms of range of motion without resorting to speculation. In a February 2010 statement, the Veteran reported that he was unable to stand, walk, or sit for an extended period of time and that he used a cane for assistance ambulating. In February 2011, the Veteran submitted a statement from Dr. K.K., who stated that the Veteran is unemployable due to traumatic arthritis. However, it is unclear whether Dr. K.K. is referring solely to the Veteran's left hip condition or was also considering additional nonservice-connected disabilities, such as the Veteran's lumbar degenerative disc disease. An evaluation by the Social Security Administration (SSA) in February 2011 concluded that the Veteran was able to stand or walk for three hours of an eight-hour workday and sit for six out of eight. He could lift ten pounds occasionally and less than 10 pounds frequently. He could occasionally balance and stoop, but never climb, crouch, kneel, or crawl. The Veteran required a cane for prolonged walking or standing. The Veteran was granted entitlement to disability benefits from the SSA, based not only on his left hip disability, but also lumbar degenerative disc disease, depression, and posttraumatic stress disorder (PTSD). The Veteran was afforded another VA examination in February 2011. He reported flare-ups with walking or sitting for long periods of time. He used a cane for assistance ambulating. On range of motion testing, flexion ended at 110 degrees, extension ended at 20 degrees, adduction ended at 20 degrees, abduction ended at 45 degrees, external rotation ended at 45 degrees, and internal rotation ended at 30 degrees. There was no change in range of motion testing on repetitive testing, but the Veteran did exhibit pain with range of motion. The examiner noted that it was possible the Veteran would experience additional functional limitation following repeated use, but was not able to express this in terms of range of motion without resorting to speculation. The Veteran was afforded another VA examination in October 2011. He reported using a cane and that flare-ups impacted walking, bending, and lifting. On range of motion testing, flexion was normal but painful beyond 90 degrees, extension was greater than 5 degrees, there was no abduction lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, rotation was not limited such that the Veteran could not toe-out more than 15 degrees, and repetitive testing did not result in any additional limitation of motion. The examiner opined that the Veteran had functional loss and functional impairment of the hip and thigh, but noted that strength was normal, and that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. He had a mildly positive test for left hip impingement/pain. The examiner noted the Veteran's contention that he was limited in his ability to work, but opined that the Veteran seemed able to work. The examiner observed, He claims to have pain, but the exam was positive for only mild pain with extreme flexion. He should be able to perform sedentary/seated work with no problems. His unexplainable [left] hip pain may limit his ability to perform active work such as carrying heavy objects or squatting, but I can see no explanation for his pain. The Veteran was afforded another VA examination in January 2018. He reported flare-ups and functional loss due to his left hip disability. Range of motion testing showed flexion from 0 to 90 degrees, extension from 0 to 20 degrees, abduction from 0 to 25 degrees, adduction from 0 to 20 degrees, external rotation from 0 to 40 degrees, and internal rotation from 0 to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. Range of motion exhibited pain. There was no additional loss of function or range of motion following repetitive testing. The examiner opined that she was unable to stay without mere speculation that pain, weakness, fatigability or incoordination significantly limited function ability with repeated use over time or with flare-ups. The examiner further noted that muscle strength was normal, and that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. Regarding the impact of the Veteran's left hip disability on his occupational functioning, the examiner noted that tasks requiring prolonged sitting, standing and walking; heavy lifting; kneeling; squatting; climbing; and forward bending aggravate the Veteran's condition. In November 2020, the Director of Compensation Service concluded that after reviewing the record, the Veteran did not meet the criteria for extraschedular TDIU. The Director observed that the VA examinations of record denote the description of a mild to moderate left hip and thigh disability that has no significant impact on sedentary employment. The evidence shows limitations to squatting, walking long distances, and climbing. Based on the above evidence, the Board finds that TDIU on an extraschedular basis is not warranted prior to February 15, 2019. The preponderance of the evidence weighs against finding that the Veteran's left hip disability alone prevented the Veteran from securing or maintaining substantially gainful employment prior to February 15, 2019. The evidence shows that prior to February 15, 2019, the Veteran’s nonservice-connected disabilities rather than his service-connected left hip disabilities primarily precluded his ability to maintain substantially gainful employment. Although the evidence documents some functional impairment of the left hip, given the Veteran’s training and job experience as a medic and in security, the Board finds that this impairment did not render him unemployable due solely to the left hip. Although the January 2018 VA examiner noted that certain tasks would aggravate his condition, there was no indication that he would be unable to maintain substantially gainful employment. Again, muscle strength was normal and there was no additional loss of function following repetitive use. Moreover, he only occasionally required an assistive device. As such, the functional limitations due solely to the of the Veteran’s service-connected left hip disabilities did not preclude the Veteran from securing substantially gainful employment during this period. To the extent the Veteran relies on the medical opinion from Dr. K.K. that he was unable to work, it is unclear whether Dr. K.K. based his medical opinion solely on the Veteran's left hip/thigh disabilities (his only service-connected disabilities during the period under consideration) or whether other nonservice-connected disabilities were considered. Accordingly, the Board finds that Dr. K.K.’s opinion has limited probative value. Likewise, the Board gives limited weight to the decision by the SSA to award disability benefits during the period on appeal, since it considered multiple nonservice-connected disabilities in determining that the Veteran was unemployable. Importantly, SSA decisions are not binding on VA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA and SSA decisions are not binding on VA). Moreover, again, the SSA determination also indicated that the Veteran was disabled due to nonservice-connected disabilities. While the Board has considered the Veteran’s contentions that his service-connected left hip disability was so painful that he was unable to work because of it, the Board finds the Veteran’s contentions to be inconsistent with the medical evidence. The evidence of record, including VA examinations, consistently shows mild to moderate functional impairment of the left hip that would likely prevent the Veteran from maintaining physically demanding employment, but would not preclude less demanding office work that primary involved sitting or occasional light activity. In particular, the October 2011 VA examiner addressed the Veteran’s subjective complaints of pain, but noted the absence of any objective explanation for such complaints and concluded that the Veteran should be easily be capable of sedentary employment. The Board gives greater weight to the objective medical evidence compared to the Veteran’s subjective complaints. For all the above reasons, entitlement to TDIU on an extraschedular basis prior to February 15, 2019 is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.