Citation Nr: 21013250 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 04-31 565 DATE: March 9, 2021 ORDER The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to June 17, 2010, to include on an extraschedular basis is denied. The claim of entitlement to a TDIU from August 13, 2015 is denied. FINDINGS OF FACT 1. Prior to June 17, 2010, the Veterans service-connected disabilities did not render him unable to secure and follow substantially gainful occupation. 2. On and after August 13, 2015, the Veteran was not prevented from securing and maintaining substantially gainful employment due solely to one of his service-connected disabilities separate from his service-connected adjustment disorder with mixed anxiety and depressed mood. 3. On and after August 13, 2015, the Veteran was not prevented from securing and maintaining substantially gainful employment due solely to any combination of his service-connected disabilities other than his service-connected adjustment disorder with mixed anxiety and depressed mood. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to June 17, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.16. 2. On and after August 13, 2015, the criteria for entitlement to a TDIU (separate from service-connected adjustment disorder with mixed anxiety and depressed mood) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1981 to August 1981, May 1982 to July 1982, and May 1985 to July 1987. In June 2006, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In April 2017, July 2019, and November 2020, the Board remanded the matter for further evidentiary development, to include obtaining a medical opinion and to refer the issue of entitlement to TDIU prior to June 17, 2010, to the Director of Compensation for consideration of whether a TDIU is warranted pursuant to 38 C.F.R. § 4.16 (b). An opinion was obtained, and the issue was referred to the Director. For the reasons indicated in the discussion below, the opinion was adequate. Therefore, there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to June 17, 2010, to include on an extraschedular basis Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having 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. The non-economic component includes consideration of: Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. For the period prior to June 17, 2010, the issue of entitlement to a TDIU has been associated with the Veteran’s claims relating to higher initial ratings for residuals, injury, right wrist, with chronic subluxation and status post tear, ulnar and radial collateral ligaments, right first metacarpophalangeal joint that were appealed from a June 2004 rating decision. For this period, the Veteran was service-connected for the following conditions: right wrist injury residuals with chronic subluxation, status post tear, ulnar and radial collateral ligaments, right first metacarpophalangeal joint, without instability, with arthritis; status post bunionectomy right first medial head metatarsal with pain, with pes planus, hallux valgus, and plantar fasciitis; status post bunionectomy, left first metatarsal head with degenerative arthritis first metatarsal phalangeal joint with pes planus, hallux valgus, and plantar fasciitis; and right knee meniscal tear with degenerative arthritis status post repair. The Veteran’s combined disability rating for these conditions was 40 percent (other than periods that temporary total ratings were granted); as such, the Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) prior to June 17, 2010. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he was unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16 (b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16 (b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As noted above, the Board referred the Veteran’s TDIU claim for the period prior to June 17, 2010, to the Director, Compensation Service for extraschedular consideration in its November 2020 remand. In a January 2021 Advisory Opinion, the Director of Compensation determined the overall evidence failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevented the Veteran’s employment prior to June 17, 2010. The Director concluded that entitlement to an extraschedular TDIU was not warranted prior to June 17, 2010. The Board conducts de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director’s decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) ([T]he Director’s decision [pursuant to 38 C.F.R. § 4.16 (b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence). For the following reasons, the Board finds that entitlement to a TDIU prior to prior to June 17, 2010, is not warranted. In September 2015, the Veteran submitted a VA Form 21-8940 for a TDIU. He reported that he had not worked since 1998 due to his service-connected disabilities and that his ability to work full-time had been affected since January 1986. He reported that he had completed high school and four years of college. The Veteran reported that the conditions that kept him from being able to work included: his left and right bunionectomy residuals, his right wrist injury, the residuals of his right ulnar and radial collateral ligaments tear, limitation of motion of the thumb, and adjustment disorder with mixed anxiety and depressed mood. A December 2005 Social Security Administration decision indicates that the Veteran alleged disability since December 1999 due to arthritis, joint pain, and post stress due to a head trauma. The determination stated that the Veteran had “severe” impairments due to a psychiatric disorder, history of head trauma with residual headaches, arthritis and degenerative joint disease. In a March 2003 Form SSA-3368, the Veteran stated that his disabilities affect him by causing him to be unable to stand for any period of time due to arthritis due to extreme pain, that he has problems with extended headaches and short-term memory, that his speech is affected, and his body shakes constantly. The Board notes that prior to June 17, 2010, the Veteran was not service-connected for his adjustment disorder with mixed anxiety and depressed mood, headaches or migraines, and hip or low back pain. The Board also notes that in a January 2017 Fully Developed Claim the Veteran stated that the effective date that should be granted for individual unemployability should be June 17, 2010. The evidence of record indicates that the Veteran was evaluated on multiple occasions between May 2002 and June 2010, including VA examinations in May 2004, January 2009, November 2009, and January 2010. None of these examiners provided an opinion that the Veteran was totally precluded from all work at that time due to his service-connected disabilities. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert). Moreover, the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Id. at 1354. The Board finds that the probative evidence does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment prior to June 17, 2010. While multiple VA examinations demonstrate some functional impact related to the Veteran’s service-connected conditions during this period, the evidence of record, including the Veteran’s own statements, indicates that the Veteran’s inability to work during this period is due to conditions that are not service-connected during this period. First, the Board notes the Veteran’s statements received in January 2017 that TDIU should have been granted from June 2010. The Board finds probative the Veteran’s statements on his September 2015 VA Form 21-8940 that his adjustment disorder with mixed anxiety and depressed mood was one of the reasons he was unable to work. This is supported from the Veteran’s reports on his statements to SSA in 2003 that he was unable to work due, in part, to stress from head trauma and symptoms of headaches and short-term memory loss that are not service-connected during this period. While not controlling, the Board also finds probative that the SSA determined that the Veteran was unable to work due, in part, impairments of schizophrenia disorder and history of head trauma with residual headaches that were not service-connected prior to June 17, 2010. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). For the above reasons, it cannot be said based on the medical and lay evidence that prior to June 17, 2010, that the Veteran’s service-connected disabilities caused a degree of impairment that would have rendered the Veteran unable to secure or follow substantially gainful employment considering the Veteran’s college level education. Accordingly, the preponderance of the evidence is against the claim of TDIU prior to June 17, 2010, on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b). The benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim of entitlement to a TDIU from August 13, 2015 Although the Veteran was granted a 100 percent rating for adjustment disorder with mixed anxiety and depressed mood, effective August 13, 2015, in an August 2016 rating decision and entitlement to TDIU, effective June 17, 2010, in an September 2017 rating decision, the Board has determined that entitlement to TDIU from August 13, 2015, should still be considered as the Veteran could be entitled to Special Monthly Compensation (SMC) at the housebound rate if TDIU was determined to be warranted based upon condition(s) other than the Veteran’s adjustment disorder with mixed anxiety and depressed mood; accordingly, the Board will consider if a TDIU is warranted on that basis. SMC at the housebound rate is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The United States Court of Appeals for Veterans’ Claims (Court) has held that although a TDIU may satisfy the “rated as total” element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). The Board has considered whether any of the Veteran’s disabilities (other than his adjustment disorder) on their own, or collectively, would warrant a TDIU to meet either the “single service-connected disability rated as 100 percent” criteria for SMC at the housebound rate or the “additional service-connected disability or disabilities independently ratable at 60 percent or greater” criteria. On and after August 13, 2015, the Veteran is service-connected for the following disabilities (other than his adjustment disorder): right wrist injury residuals with chronic subluxation, rated 10 percent disabling; status post tear, ulnar and radial collateral ligaments, right first metacarpophalangeal joint, without instability, with arthritis, rated 10 percent disabling; status post bunionectomy right first medial head metatarsal with pain, with pes planus, hallux valgus, and plantar fasciitis, rated 10 percent disabling; status post bunionectomy, left first metatarsal head with degenerative arthritis first metatarsal phalangeal joint with pes planus, hallux valgus, and plantar fasciitis rated 10 percent disabling; right knee meniscal tear with degenerative arthritis, status post repair, rated 10 percent disabling; degenerative arthritis, thoracolumbar spine, rated 10 percent disabling; and multiple disabilities rated non-compensable. Unfortunately, the Board finds that none of these conditions on their own, or collectively, meet the schedular requirements for a TDIU as they result in a combined rating of 50 percent. See 38 C.F.R. §§ 4.16 (a), 4.20, 4.25, 4.26. More significantly, none of these conditions on their own, or collectively, result in the Veteran being unable to secure and maintain substantially gainful employment. 38 C.F.R. § 4.16 (b). The Board notes that none of the medical evidence or the Veteran’s lay statements indicate that any combination of these disabilities render the Veteran unable to perform all work. As noted above, even the Veteran has indicated that his adjustment disorder with mixed anxiety and depressed mood is a component of his inability to find and maintain work. He indicated this in both formal applications for TDIU. See August and September 2015 VA Form 21-8940. Also, when SSA disability benefits were granted, they were granted, in part, due to the Veteran’s psychiatric conditions and based upon the Veteran’s reports that his psychiatric symptoms limited his ability to work. Accordingly, the Board finds that the weight of the evidence weighs against a finding that any of the Veteran’s service-connected conditions (separate from his service-connected adjustment disorder) on their own, or collectively, warrant a TDIU on and after August 13, 2015. Accordingly, the Board finds that the preponderance of the evidence is against the claim for TDIU on and after August 13, 2015, separate from the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood. See 38 C.F.R. §§ 4.3, 4.16. The benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.