Citation Nr: 21013336 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-41 646 DATE: March 9, 2021 ORDER For the period prior to March 27, 2019, entitlement to extraschedular total disability based on unemployability (TDIU) is denied. FINDING OF FACT For the period prior to March 27, 2019, the Veteran’s service-connected disabilities did not prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSION OF LAW For the period prior to March 27, 2019, the criteria for entitlement to extraschedular TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.41, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1993 to July 1993 and from September 2001 to October 2004 with additional service in the national guard and the reserves. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in March 2018. The hearing transcript is associated with the claims file. The appeal was last remanded by the Board in May 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). For the period prior to March 27, 2019, entitlement to TDIU A May 2011 private treatment record documents the Veteran’s reports that following his total hip replacement in 2008, his pain began to increase as he increased his activities. The Veteran reported pain, burning, and numbness in his distal thigh as well as increased offset in his right leg. A March 2012 private treatment record contained in the Veteran’s Social Security Administration (SSA) records notes that the Veteran had to cease all activities following his right-sided total hip replacement. A November 2012 SSA disability determination found that the Veteran was disabled since July 2008. The determination further found that the Veteran was severely impaired following his right total hip replacement and that the Veteran had not engaged in substantial gainful activity since July 2008. In an October 2013 statement in support of his claim, the Veteran asserted that he worked for a furniture store from late 2006 to early 2007, became unable to perform any substantially gainful activity in July 2008, and began receiving SSA disability benefits in 2008. A November 2013 employment verification form from one of the Veteran’s prior employers noted that the Veteran worked as a retail sales association at a furniture store from June 2006 to March 2007. The Veteran was afforded a VA examination for his service-connected scars in November 2013. The November 2013 VA examiner’s report notes that the Veteran’s scars were not painful nor unstable. The examiner determined that the service-connected scars did not impact the Veteran’s ability to work. The Veteran was also afforded a VA examination for his service-connected right, fifth digit disability in November 2013. The November 2013 VA examiner’s report notes that the Veteran’s right, fifth digit fracture was well healed long ago and asymptomatic. The examiner determined that the service-connected right, fifth digit disability did not impact the Veteran’s ability to work. The Veteran was also afforded a VA examination for his service-connected right hip disability in November 2013. The November 2013 VA examiner’s report notes that the Veteran reported serving in the military from 1992 to 2004. The examiner also noted the history of the Veteran’s right hip disability including his 2008 right total hip replacement. The examiner noted the Veteran’s reports that he had little improvement since the 2008 surgery and that the Veteran was told by his private surgeon that additional surgeries would not improve the Veteran’s condition. The examiner noted that the Veteran ambulated with a cane constantly. The examiner determined that the Veteran’s right hip disability impacted his ability to work because it was difficult for the Veteran to bear weight and ambulate for long periods of time. The examiner also noted however, that the Veteran was capable of sedentary work that would allow the Veteran to alternate standing, walking, and sitting as tolerated. A May 2015 private treatment record notes that the Veteran experienced chronic pain following his right total hip replacement. The record further notes that the Veteran could not walk more than two blocks due to pain, that he used a cane, and that aggravating factors included prolonged standing, walking, and use of stairs. An October 2015 VA treatment record notes that the Veteran was employed three times after discharge from active duty service but that he began receiving SSA disability benefits in 2008. September 2013, January 2015, and March 2016 functional screenings contained in the VA treatment records note that the Veteran did not need help with transportation, meal preparation, housework, laundry, or handy work. On a June 2016 function report contained in the SSA records, the Veteran reported that he was unable to drive or operate heavy machinery due to prescription pain medication he takes every six hours. In addition, the Veteran reported being unable to stand for longer than 15 to 20 minutes, unable to sit in the same position for over 15 minutes without pain medication, and unable to lift more than 5 pounds. He also reported that he was unable to squat, bend, or kneel efficiently, and unable to stand or walk for long periods of time due to his hip replacement The Veteran also stated that he could only walk less than 300 feet before needing a ten minute break. The Veteran also reported needing assistance putting on his right sock and shoe. A January 2017 private treatment record notes that the Veteran’s right hip disability was worsening, and that the Veteran had 10/10 pain and stiffness. A February 2017 private treatment record notes that the Veteran reported severely limiting pain and that the Veteran was applying for full disability. During the March 2018 hearing, the Veteran testified that he experienced constant pain and had been prescribed oxycodone since 2002. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in March 2018. During the March 2018 hearing, the Veteran testified that he experienced constant pain and had been prescribed oxycodone since 2002. The Veteran and his wife both testified that the Veteran could not drive and that he needed assistance with dressing in pants, socks, and shoes. The Veteran also testified that he obtained his GED and had a commercial driver’s license (CDL). The Veteran testified that the last time he worked was in October 2004 when he was discharged from the military. The Veteran then testified that he had worked since discharge from active duty service at three jobs for less than three months in positions including a repair manager and a furniture sales associate. The Veteran also testified that he tried unsuccessfully to work as a delivery driver. A May 2018 VA treatment record notes that the Veteran finished eleventh grade and obtained a high school equivalency degree (GED). However, the record also notes that the Veteran was unemployed due to severe pain in his right hip and began receiving SSA disability benefits in 2008. An August 2020 VA administrative review for entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b) issued by the Director of Compensation Services found that the Veteran met the schedular requirements from March 27, 2019 but that the evidence of record did not appear to show that the Veteran was precluded from substantially gainful employment prior to that date. A December 2020 VA administrative review for entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b) issued by the Director of Compensation Services determined that the greater weight of the objective medical evidence showed limitations to right hand use and prolonged sitting and ambulating due to the Veteran’s service-connected disabilities with no significant impact on sedentary employment prior to March 27, 2019. Analysis Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). Prior to March 27, 2019, the Veteran was awarded service connection for a right-sided hip arthroplasty rated at 50 percent, a right fifth finger fracture rated at noncompensable, and scars rated noncompensable. The Veteran’s combined evaluation for compensation was 50 percent. As such, the Veteran did not meet the schedular rating criteria for TDIU prior to March 27, 2019. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (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); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In August 2020 and December 2020, the Executive Director of Compensation Services denied TDIU on an extraschedular basis prior to April 29, 2013. As the Director has considered the issue in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). A review of the competent evidence of record, which includes the Veteran’s medical records, his lay statements, the opinions of VA examiners, and the opinions of vocational experts, when taken in total, does not suggest unemployability as a result of his service-connected disabilities prior to March 27, 2019. Initially, the Board notes a discrepancy between the Veteran’s March 2018 hearing testimony and prior statements concerning his work history. Specifically, he testified that the jobs he held after service lasted no more than 3 months; one of those employers confirmed that the veteran actually worked at the job for 9 months. A more substantial inconsistency concerns the veteran’s testimony before the Board and his report to SSA that he could not operate a vehicle. The Board emphasizes that the Veteran also testified during the March 2018 hearing that he has a CDL and has attempted to work as a delivery driver, although unsuccessfully. Moreover, in the September 2013, January 2015, and March 2016 VA function reports, the Veteran reported that he did not need help with transportation, including driving. The veteran’s maintaining of a CDL and his apparent actual ability to operate a vehicle when attempting to work undermines the credibility of his testimony concerning the impact of service-connected disorders on his ability to drive. Accordingly, the Board also finds the Veteran’s assertion that he is unable to operative a vehicle due to service-connected disability lacks credibility. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Veteran has not contended, and the evidence does not show that the Veteran’s other service-connected disabilities to include his right fifth finger disability and his scars contribute to any occupational impairment. Instead, the Veteran contends that his right hip disability causes him to be unemployable. The Board acknowledges that the Veteran has been in receipt of SSA disability benefits since 2008 and that the November 2012 SSA disability determination was based on occupational impairment caused by the Veteran’s service-connected right hip disability. While the Board agrees that the Veteran’s right hip disability results in some occupational impairment, the Board does not find that it prevents the Veteran from engaging in substantially gainful employment. The Board attaches greater probative value to the determination made by the November 2013 VA examiner that the Veteran’s right hip disability would not prevent employment in a sedentary job which allowed the Veteran to alternate standing, walking, and sitting as tolerated. In this case, the Board finds the definition of the term “sedentary employment” used by the examiner in the November 2013 opinion means capable of alternating between standing, walking, and sitting as tolerated. See Withers v. Wilkie, 30 Vet. App. 139, 147-49 (2018) (holding that if the Board relies on an examiner’s conclusion that a veteran is capable of sedentary work in denying TDIU, it must determine the meaning of sedentary work “from the particulars” of the opinion and explain how it interprets the examiner’s use of the term). This definition is also consistent with the June 2016 SSA function report which notes that the Veteran had to rotated between sitting and standing in approximate fifteen-minute intervals. Occupations representative of sedentary work include clerical work, inspection work, and assembly work. Such work would not require the type of demanding physical work or persistent strenuous activity that is precluded by the Veteran’s service-connected disabilities. The evidence of record also shows that the Veteran had the mental ability to perform the activities required to perform sedentary work. Following a review of the evidence of record, the Board finds that the collective impact of the Veteran’s service-connected disabilities alone, as opposed to his general state of health, would not preclude him from obtaining or maintaining substantially gainful employment in a sedentary environment prior to March 27, 2019. The Board notes that the September 2013, January 2015, and March 2016 VA function screenings support this finding as they note that the Veteran did not need help with transportation, meal preparation, housework, laundry, or handy work. In addition, the Veteran obtained a GED and CDL and had post-service experience in furniture sales and as a delivery driver. The Veteran’s occupational experience did not further limit his ability to secure and follow substantially gainful unskilled or semi-skilled employment, such as a receptionist, dispatcher, or surveillance systems monitor. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence weighs against an award of extraschedular TDIU prior to March 27, 2019. The claim is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, Associate 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.