Citation Nr: 21013856 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-01 140 DATE: March 10, 2021 ORDER A total disability rating due to individual unemployability based upon service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran variously reports retiring from work between 2010 and October 2011. A preponderance of the evidence shows that the Veteran was last actively following a substantially gainful occupation proximate to a left knee arthroscopy surgery performed on August 30, 2011 following a post-service workman’s compensation injury. He is therefore considered to have been unemployed from September 2011 forward. 2. A preponderance of the evidence weighs against the claim that the Veteran, by reason of his service-connected disabilities alone, is precluded from obtaining or maintaining substantially gainful employment for any period in the present appeal, notwithstanding the portion for which a temporary total for surgical convalescence has previously been established. CONCLUSION OF LAW The criteria to establish entitlement to a TDIU rating are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1972 to March 1994. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in November 2017 to present testimony on the issue on appeal, among others previously decided. The Board of Veterans’ Appeals (Board) denied the present claim in April 2018, then the Veteran pursued an appeal to the United States Court of Appeals for Veterans Claims (Court). In December 2018, both VA and the appellant agreed that the Board’s prior denial of these claims should be set aside and remanded for further evidentiary development. This appeal was last before the Board in August 2019 and June 2020 at which time remands were ordered for the agency of original jurisdiction (AOJ) to complete agreed upon evidentiary development to comply with due process requirements. The evidentiary record has now been adequately developed in substantial compliance with all prior Board remand instructions and has been returned to the Board for further appellate review. A TDIU rating is denied. A total rating based on individual unemployability may be granted where a Veteran is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a). Where, as here, there are two or more service-connected disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In the present case, the Veteran has undergone various increases and decreases in his combined rating over time based upon temporary total ratings for surgical convalescence, increased ratings, and rating reductions. When evidence of unemployability is submitted during an appeal from an assigned disability rating, a claim for entitlement to a TDIU rating will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this instance, the Veteran sought an increased rating for his cervical spine, lumbosacral spine, left shoulder, and left knee disabilities, as well as service connection for a fibromyalgia disability through a claim received by VA on June 22, 2010. In an April 2012 rating decision, the AOJ recharacterized the previously service-connected left shoulder myofascial pain syndrome to service connection for fibromyalgia, and increased the associated evaluation. In the same rating decision, the AOJ found a claim for TDIU to be raised by the record and deferred adjudication for the Veteran to submit a formal application for TDIU. As such, the Board infers a TDIU claim to have been in contention since June 22, 2010 as the date of claim seeking service connection for fibromyalgia from which an initial rating claim ensued, and thus a claim for TDIU raised by the record during the Veteran’s pursuit of a higher initial rating for fibromyalgia. As of June 22, 2010, the Veteran was in receipt of a combined 70 percent rating, thereby meeting the minimum threshold percentage criteria necessary for entitlement to a schedular TDIU rating. There was a temporary total (100 percent) disability rating assigned from August 30, 2011 to November 1, 2011 due to convalescence after knee surgery. The Veteran’s combined rating then returned to 70 percent, until being reduced to 60 percent as of May 1, 2013, then 50 percent as of June 1, 2014, then increased to 60 percent as of February 13, 2018, and to the current combined rating of 80 percent as of January 28, 2020. Throughout this period from May 1, 2013 to January 28, 2020, the Veteran was in receipt of less than a combined rating of 70 percent, with no single rating of 40 percent or higher. As of January 28, 2020, although the combined disability rating increased to 80 percent, there remained no single disability ratable at 40 percent or more. However, for the purpose of establishing a 40 percent disability in combination to meet the minimum threshold criteria, disabilities of one or both upper or lower extremities may be considered as one disability, as are disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, such as the orthopedic system. 38 C.F.R. § 4.16(a). By these methods, such as where the Veteran’s cervical strain, and bilateral upper extremity radiculopathy secondary to his cervical strain are considered as a single disability for the purposes of a combined rating, do meet the 40 percent minimum threshold. Notably, even when the minimum threshold criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU rating on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Stated another way, apart from the period in which a temporary total rating based on convalescence was established, the Board now considers the Veteran’s entitlement to a TDIU rating on a schedular basis from June 22, 2010 to May 1, 2013, and after January 28, 2020, the periods on appeal for which the minimum percentage threshold is met. For the interim period from May 1, 2013 to January 28, 2020, the period for which the minimum threshold is not met, the Board considers whether entitlement to a TDIU rating may be warranted on an extra-schedular basis. However, because the Board ultimately finds that the Veteran is not shown to be unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities alone at any time during the present appeal, the outcome regarding an absence of entitlement to a TDIU rating is ultimately the same under both a schedular and extra-schedular analysis. Disability ratings established for his disabilities are in themselves a recognition of the significant combined impairment of his earning capacity resulting from his multiple service-connected disabilities. The specified degrees of disability are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the established grades of each disability. 38 C.F.R. § 4.1. Here, the Veteran has acknowledged that there are jobs that he can do, despite his present disabilities, both service-connected and nonservice-connected, but that his disabilities “would make it hard to find even sedentary work plus age is not in my favor.” Veteran’s statement on VA Form 21-8940, November 2020; Hearing transcript, November 2017. In determining whether the Veteran is entitled to a TDIU rating, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). The Board also notes that a TDIU rating is not for application merely because a claimant is unemployed or could have challenges in obtaining employment that suitably accommodates his or her needs based on disability. These factors are not adequate on their own to establish the total disability rating sought. Instead, in determining whether the Veteran can obtain and maintain substantially gainful employment, the Court in Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) listed some factors that the Board may consider to help guide its determination, holding that the phrase “unable to secure and follow a substantially gainful occupation” has both an economic and a noneconomic component. 31 Vet. App. at 73. The Court further held that “[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to”: (1) The veteran’s history, education, skill, and training; (2) 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, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, “By discussing [the] potentially relevant factors, we don’t create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it.” Id. at 62. Here, during the present appeal, service connection has been in effect for cervical (rated 20 percent disabling) and lumbosacral (10 percent) strain, bilateral upper (20 percent for each limb) and lower extremity (10 percent each limb) radiculopathy, fibromyalgia (from 40 percent to 20 percent), right shoulder muscle spasm (10 percent before severance on June 1, 2014), bilateral hand contusions and history of finger fractures (from 10 percent to zero percent), left knee disabilities (10 percent, with a temporary total due to surgery), and various noncompensable (zero percent) skin and scar disabilities. The Veteran identifies his back, knees, shoulders, and fibromyalgia disabilities, more recently clarified to primarily be his upper extremity radiculopathy disability, as the service-connected disability(ies) that prevent him from working. VA Form 21-8940, November 2020 & April 2012. He further states that it would be hard for him to find work because of multiple knee surgeries and elbow surgery, lower radiculopathy that prevents him from standing, sitting or walking for long periods of time, and pain in his left shoulder that causes headaches and irritability from lack of sleep. VA Form, 21-8930, November 2020. He also described trouble concentrating due to fibromyalgia pain. Board hearing transcript, November 2017. The Board notes that service connection is not in effect for elbow or headache disabilities, nor sleep impairment or other psychological disability, to include as manifested by irritability, thus these nonservice-connected conditions will not be considered as the basis for an inability to secure and follow a substantially gainful occupation. If the Veteran seeks compensation benefits based on these disabilities, he should first submit a claim seeking secondary service connection for them if he believes the conditions to be caused or aggravated by service-connected disease or injury. See 38 C.F.R. § 3.310. Regarding the left shoulder pain described by the Veteran, although a specific left shoulder disability is no longer expressly in effect at the time of this decision, the Veteran’s previously rated left shoulder myofascial pain syndrome has been incorporated into the existing rating for fibromyalgia and the left shoulder pain is considered service-connected for the purposes of this appeal and consideration of whether the Veteran can obtain and maintain substantially gainful employment. The Board now turns to a discussion of the factors pertaining to the Veteran’s ability to obtain and maintain substantially gainful employment. The Veteran retired from a career in the Air Force lasting over 21 years where he served in roles of aircraft maintenance and aerospace maintenance support, as well as leadership positions as a noncommissioned officer (NCO), including graduation from the NCO Academy and Senior NCO Academy. DD Form 214, April 1994. He then worked for many years from 1999 to 2011 as a copy machine and printer repairman. In the interim, the Veteran reported holding various jobs in car repair, janitorial services, and as a jailor. See VA examination, July 2012; VA Form 21-8940, April 2012. The Veteran completed high school earning his diploma, had multiple documented trainings and certifications during his military career, and completed “some” college. VA Form 21-8940, April 2012. Despite attempts to clarify his collegiate educational experience, the record remains somewhat unclear on this point as the Veteran has declined to fully respond by completing the requested forms and has offered differing details over the course of this appeal. The Veteran has variously reported that his college education consisted of none, one advanced placement (AP) course, or being “close to getting associates degree in aircraft management.” See VA Forms 21-8940, November 2020, October 2020 & April 2012 compare with VA examination, July 2012. Despite the small inconsistencies in this regard, viewing the evidence as a whole, it appears that the Veteran had significant vocational education and experience in mechanical repair and maintenance fields, but essentially little, if any, formal college education. The record also reflects that, although it is undisputed that there are some functional impairments resulting from his service-connected disabilities, the Veteran retains the physical and mental ability to perform the type of activities necessary in a mechanical repair field for which he has the training and experience. A December 2020 VA examination states that the Veteran’s peripheral nerve conditions (service-connected upper and lower extremity radiculopathy now diagnosed as idiopathic peripheral neuropathy) impact his ability to work with pain while handwriting, and that the Veteran may only carry the occasional 50 pounds, and must rest his shoulder after 1-2 hours of pulling or yardwork type activity. Notably, this limitation is found by the examiner to be related to the Veteran’s shoulder arthritis which is not service-connected, as opposed to the service-connected neurological condition or fibromyalgia. Nonetheless, it does not reflect occupational limitation consistent with an inability to obtain and maintain substantially gainful employment. VA examinations in January 2020 also identified that the Veteran’s spine, shoulder, knee, lower leg, hand and finger and fibromyalgia disabilities, although limiting, continued to allow the Veteran to be able to exert up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, or pull during a normal 8 hour work day. The Veteran’s service-connected history of hand contusions and finger fractures, and right shoulder disabilities were found to have no impact on the Veteran’s ability to perform any type of occupational task. The Veteran subjectively reported that bending or moving (such as to inspect machines) aggravated his neck pain and that he was unable to sit or stand for long periods of time because this also increases his neck pain. The Veteran further reported experiencing widespread pain but could not distinguish if this was due to his fibromyalgia or other illnesses. In any event, the Veteran reported that depending on his movements, he will experience pain in his neck, back, knees, hands, and feet and is fatigued some of the time. VA fibromyalgia examination, January 2020. Other examinations and medical treatment occurring between when the Veteran was last engaged in substantially gainful employment in September 2011 and the January 2020 examinations described above have been reviewed in full, but do not reflect impairments due to service-connected disabilities that are consistent with an inability to secure or follow a substantially gainful occupation. In October 2011, following knee surgery, the Veteran was medically cleared to return to full work duty status. VA orthopedic surgery notations, October 2011. His left knee pain then worsened, and he ultimately decided not to return to his prior occupation due to knee pain. See, e.g., VA treatment notation, February 2012; VA examination, December 2011. However, subsequent VA medical examinations to determine the severity of his service-connected disabilities found either that the relevant conditions did not impact his ability to work, or that the limitations presented did not rise to the level of preventing the Veteran from securing or following a substantially gainful occupation, as the service-connected conditions continued to allow for work such as at a desk job that would allow for adequate breaks and changing of positions. See, e.g., VA examinations and treatment records, September 2011-January 2020. In sum, considering the severity of each of his service-connected disabilities throughout the period on appeal, the Veteran is shown, at worst, to retain the physical capacity to lift, carry, push and pull with 10 pounds of force or less. He has no auditory or visual limitations due to his service-connected disabilities. Although he may have some limitations in the duration of time that he may remain sitting, standing, walking, etc., the record does not express limitation if he could change positions and take breaks. The Veteran has no service-connected mental health disabilities, although some general degree of impairment in concentration or focus is conceded due to pain and discomfort resulting from service-connected disabilities. In all, although he may no longer have the capacity for work in his prior position as a copy machine and printer repairman with higher physical demands, he is not found to be precluded from securing or following substantially gainful employment for which he otherwise has the education, skills, and abilities, to include mechanical maintenance or repair jobs with fewer physical demands and the flexibility to change positions as needed. (Continued on the next page)   The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities alone. 38 C.F.R. § 4.16. As such, the criteria to establish entitlement to a TDIU rating for the period in which a schedular rating is available are not met. 38 C.F.R. § 4.16(a). For the period on appeal during which a TDIU rating would be required to be established on an extra-schedular basis, the Veteran is not found to be unemployable by reason of his service-connected disabilities, and is, in turn, not shown to be unable to secure and follow a substantially gainful occupation. Thus, the need for referral to the Director of Compensation Service for extra-schedular consideration is not indicated. 38 C.F.R. § 4.16(b). A TDIU rating is not warranted and the appeal is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.