Citation Nr: 21012825 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-42 598 DATE: March 5, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU), for substitution purposes, is denied. FINDING OF FACT 1. The Veteran does not meet the scheduler criteria for TDIU. 2. The preponderance of the evidence is against a finding that the Veteran's service-connected disability rendered him unable to secure or follow substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSION OF LAW The requirements to establish entitlement to a TDIU 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 from May 1982 to June 1984. The Veteran died in April 2019 and the appellant is the Veteran’s surviving spouse. In May 2020, the appellant was accepted as a substitute claimant for the purpose of processing the Veteran’s appeal to completion. This appeal was remanded by the Board of Veterans’ Appeals (Board) in October 2018. TDIU The Veteran claimed that he was unable to work due to his service-connected lumbar spine disability. After a review of the record, the Board finds that entitlement to TDIU is not warranted. 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. A TDIU may be assigned, if the schedular rating is less than total, 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, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran had one service-connected disability, lumbar spine disability, rated as 20 percent disabling. Therefore, the Veteran does not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). However, because 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 as totally disabled, the file may be submitted to the Director of Compensation Services for extra-schedular consideration if the Veteran is found to be unemployable by reason of service-connected disabilities even though he may fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the Veteran's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required for employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363(1993). Consideration may be given to a Veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The present claim for TDIU arises from a claim for increased rating, when the Veteran contended he is unable to work due to his service-connected lumbar spine disability. See Veteran’s December 2013 Notice of Disagreement. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was afforded a VA examination for his lumbar spine in 2002, at which point he reported that he used to work as a refrigerator installation man. See January 2002 VA Examination Report. The January 2002 examiner noted that the Veteran was on a work restriction at the time of the examination and he was not to lift anything greater than 30 pounds. See January 2002 VA Examination. In a subsequent August 2004 VA examination for the spine, he reported that he did refrigerator construction in commercial chain restaurants. In an April 2004 TDIU claim the Veteran noted that he began, but was unable to complete, computer training classes, due to pain due to his back and also depression. See April 2004 TDIU claim. The Veteran also noted on his claim that he does not have training or education past high school. In May 2015 during VA treatment, the Veteran reported that he was able to do some HVAC work recently, but that his pain was significantly exacerbated and he would prefer to do web site development. See September 2015 CAPRI Record of May 2015 Kona Clinic treatment. He reported that he was very skilled with computers and website development and that he completed an application for the voc rehab program. The Veteran was afforded a VA examination for his lumbar spine in November 2015. At that examination the Veteran reported that he has been unable to work since 2003 and he currently has severe back and neck pain which may radiate into his left arm. He noted that he was not working regularly. The examiner noted flexion of the back to 70 degrees, with pain noted on examination. The Veteran noted occasionally needing to use a brace for his back disability and upon examination it was noted that the Veteran’s lumbar spine disability would impact his ability to work. There were no neurologic or radicular findings noted. After considering the totality of the evidence including the records noted above, the Board finds that the evidence does not show that the Veteran was unemployable due to his service-connected disability. Although the Veteran asserted he was too disabled to work since 2003, there is ample evidence since that date showing the Veteran was able and capable of meeting the demands of employment. As noted above, the medical evidence of record and the Veteran’s own reports consistently indicate that the Veteran’s limitations from his service-connected lumbar spine disability limited his work in refrigerator installation but did not preclude the performance of gainful work. The Board has specifically considered the Veteran’s statements that he was very skilled in computers, he was interested in web site development, and also that he was pursuing training in computers. See September 2015 CAPRI Records. He also indicated he was able to do some HVAC and refrigerator work, but that it was painful and he much preferred pursuing computer work and web development. The Board acknowledges the Veteran’s statement in his April 2004 TDIU claim that he was unable to complete his computer training due in part to his back pain, but finds that subsequent to this statement he made other statements indicating he has pursued web site development as a career path. The Board carefully examined applicable vocational factors in determining whether the Veteran was capable of obtaining, adjusting to, and maintaining substantially gainful employment prior to his death. Specifically, the Board considered the Veteran's education, training, and work history. The Board notes that the evidence of record shows that the Veteran had a high school education and a history of semi-skilled or skilled work experience including work in refrigeration. See, e.g., April 2004 TDIU claim. The Veteran also indicated he was skilled in using computers, although he did not indicate any formal training in such. Importantly, the Veteran indicated he was able to perform some refrigeration work, although it was painful and difficult for him to do so. Accordingly, the Board finds the preponderance of the evidence shows that prior to his passing, the Veteran possessed the education, training, and work experience sufficient to adjust to and perform at least some semi-skilled or skilled work, both in the capacity of some HVAC work and also computer work. (Continued on the next page)   The Veteran’s TDIU claim in 2004 indicates that some of the Veteran’s limitations and difficulties obtaining employment were associated with depression, which is not a service connected disability, and therefore cannot be considered under 38 C.F.R. § 4.16. See April 2004 TDIU Claim. Based on the evidence and analysis above the Board finds the criteria for entitlement to a TDIU are not met on substitution basis. The Veteran did not meet the schedular requirements for a TDIU, and preponderance of the evidence shows that the Veteran was capable of substantially gainful employment prior to his passing. Accordingly, referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is not warranted, and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.