Citation Nr: 21014015 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 04-31 244 DATE: March 11, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) on an extraschedular basis prior to October 20, 2020 is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to October 20, 2020. CONCLUSION OF LAW The criteria for an extraschedular TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from May 1968 to July 1969. This appeal came before the Board of Veterans’ Appeals (Board) from an April 2002 rating decision. In a decision dated in May 2012, the Board denied the claim for entitlement to a TDIU rating. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a single-judge Memorandum Decision, dated in March 2014, the Court vacated the Board’s decision and remanded it to the Board. The appeal was remanded in October 2014 for additional development consistent with the Court’s Memorandum Decision. In August 2016 the Board remanded the issue for further development. In May 2017, the Board remanded the matter for referral to the Director of Compensation Service. The Director denied entitlement to extraschedular TDIU in July 2017. Most recently, the matter was remanded in May 2018 for a new VA examination because a prior opinion from April 2016 was inadequate, as it lacked an adequate rationale and reflected some factual inaccuracies relating to the Veteran’s work history. The Veteran submitted to new VA examinations for his service-connected disabilities in December 2018. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has alleged unemployability resulting from residuals from a gunshot wound to the right chest. He has reported fatigue and shortness of breath, as well as recurrent pain. He reported his last full-time employment was as a construction worker in 1997. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Since October 20, 2020, the Veteran has been in receipt of a 100 percent schedular rating. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU rating moot, as a TDIU rating could, in certain circumstances, render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that a TDIU rating is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran is currently service-connected for a gunshot wound to the right chest with right hemothorax and retained foreign body (gunshot wound) with a 100 percent disability rating effective October 20, 2020. The Veteran’s only other service-connected disability is a right inguinal hernia, for which he has had a 0 percent disability rating since November 1, 1977. However, the Veteran has reported that the hernia was repaired in 1968 and that it has not caused him problems or limited his ability to work since that time. The Veteran’s statements are supported by findings on physical examination. As such, a TDIU rating is not warranted based solely on service-connected disabilities other than the disability that is currently rated at 100 percent. Hence, the Board finds as fact that entitlement to a TDIU rating is moot for the period beginning on October 20, 2020. Additionally, the Veteran’s service-connected disabilities did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to October 20, 2020. Prior to that time, the Veteran was service-connected for the gunshot wound at 10 percent, since November 1, 1977. As noted above, the Veteran’s right inguinal hernia has been rated at 0 percent over the same period. Thus, the Veteran’s combined rating prior to October 2020 was 10 percent. The Board notes that the Veteran does have several nonservice-connected disabilities which cannot be considered for purposes of TDIU. These include osteoarthritic changes of the right shoulder; degenerative disc disease of the cervical spine; degenerative arthritis of the lumbar spine; bilateral carpal tunnel syndrome; hypertension; anxiety; and hip and knee disabilities. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). In this instance, the matter was already referred to the Director of Compensation Service in the May 2017 Board remand. The Director performed an administrative review for extraschedular consideration of TDIU in July 2017 and denied entitlement to extraschedular TDIU. The Court has determined that the Board’s initial finding that extraschedular referral is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the decision to award an extraschedular rating. See Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). The Court also held that referral under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular rating. Id. Accordingly, the Board is able to consider extraschedular TDIU on the merits herein and is not bound to any particular outcome. Although the Board finding herein denying entitlement to extraschedular TDIU may appear to be inconsistent with the May 2017 Board remand, which found that referral to the Director for extraschedular TDIU consideration was warranted, the May 2017 Board remand made no conclusion regarding the Veteran’s ability to perform substantially gainful employment. Rather, referral to the Director was based on an April 2016 opinion of a VA examiner suggesting that the Veteran “may” be unemployable due to his service-connected disabilities when considering his prior work experience and his education level. Thereafter, the Director made a finding consistent with the Board’s conclusion herein, as noted above. The Board’s finding in the present decision is supported by the evidence, as detailed below. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (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 required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing and following substantially gainful employment prior to October 20, 2020. The reasons follow. The Veteran was assigned a 100 percent rating as of October 20, 2020, based on the date in which the Veteran began to require the use of external oxygen following a five-day inpatient hospitalization for acute respiratory failure. However, prior to that time, the weight of the evidence does not indicate the Veteran to have significant limitations that would preclude him from substantially gainful employment. As discussed above, the Veteran has not required recurrent and ongoing treatment relating to his history of right inguinal hernia, and he has not alleged limitations resulting therefrom. A December 2018 VA examination indicated the Veteran to have no work limitations resulting from his history of hernia based on the Veteran’s self-reporting. Prior to October 2020, the Veteran received only routine treatment relating to residuals from his gunshot wound without the need for urgent or inpatient care. Treatment notes routinely indicated normal musculoskeletal functioning in the upper extremities with no deformities. The Veteran also routinely had normal respiratory findings with lungs clear to auscultation and no reports of chest pain. The Veteran was not precluded from performing his activities of daily living due to service-connected disabilities, although the Veteran was noted to be limited at times resulting from separate nonservice-connected disabilities, notably including a 2017 total right hip replacement. The Veteran underwent a VA examination for assessment of his gunshot wound in August 2009. The Veteran reported pain at the site of the gunshot wound with occasional shortness of breath with heavy exertion, but none at rest. He denied any other pulmonary complaints. There was no residual hemothorax. Although not specifically addressing the Veteran’s ability to work, the examiner indicated that the Veteran had no direct residual musculoskeletal or respiratory manifestations causing any disability to the Veteran and that his mild shortness of breath symptoms were most likely secondary to his chronic smoking history. The Veteran underwent a VA examination for assessment of his gunshot wound in March 2015. The Veteran reported intermittent pain around the right hemothorax area and denied any precipitating factors for pain. He also reported occasional fatigue resulting from his muscle injury. The Veteran had no known fascial defects associated with any muscle injuries and the injury was noted not to affect muscle substance or function. The Veteran also underwent a respiratory examination in March 2015. He reported occasional nasal congestion and wheezing, causing him to wake up at night to catch his breath. However, the Veteran had a normal respiratory examination and unremarkable results on pulmonary function testing. The Veteran reported no history of taking medication for breathing or respiratory problems. An April 2016 assessment indicated the 2015 examination findings to show that the Veteran was limited from repetitive heavy lifting or carrying greater than 50 pounds during an eight-hour workday. However, this evaluation was deemed inadequate as discussed above. Following the May 2018 Board remand, the Veteran underwent an additional VA examination in December 2018. The Veteran reported that his condition had worsened and that his chest pain was now sharp and constant. He reported taking oxycodone for chest pain, which was effective, but made him feel nauseous and his skin itch. The only muscle group impacted by the Veteran’s disability was noted to be the torso and/or neck, and not the Veteran’s shoulders or extremities. The Veteran reported fatigue relating to pain, but he recorded full strength in all muscle groups on testing. In assessing the functional impact of the Veteran’s disability on his ability to work, the examiner wrote that the Veteran reported that due to pain in his chest from the bullet wound and back, he was able to lift up to 20 pounds, as supported by the Veteran’s self-reporting. Routine treatment notes thereafter continued to note the Veteran to have no musculoskeletal deformities with normal range of motion and unremarkable respiratory findings. The Veteran’s attorney has argued that the facts as described by the Director in her July 2017 administrative review of extraschedular TDIU support that the Veteran was precluded from substantially gainful employment due to his service-connected disabilities, citing to the Veteran’s earnings records, high school education, and the April 2016 assessment of the VA examiner. For example, the Veteran’s attorney wrote that the Veteran was at a loss as to why the Director’s acknowledgment that the Veteran’s yearly earnings of no more than $10,000 was considered below the threshold for substantially gainful employment but did not result in an award of an extraschedular TDIU rating. However, the Board finds this argument to be without merit. Just because the Veteran’s income did not meet the criteria of substantially gainful employment prior to October 2020 does not mean that the lack of income was due solely to a service-connected disability or disabilities. A finding that a veteran is unable to secure or follow substantially gainful employment must be based on service-connected disability or disabilities, and the Director specifically concluded that “the evidence does not show that the symptoms and severity of the service-connected disabilities render the Veteran unable to obtain and follow all forms of substantially gainful activity.” This is why the claim for an extraschedular TDIU rating was not granted by the Director. Regarding the Veteran’s education, training, skills, and work history, the Veteran reported having a high school education. He reported no college education, and the evidence shows he had additional training in carpentry. The Veteran has reported 20 years of experience as a construction worker and stated that he last worked full time as a construction worker in 1997. However, treatment notes indicate that the Veteran worked at least in a part-time capacity thereafter, as recently as 2010. For example, on VA examination in December 2018, the Veteran reported that he retired from construction work 8 years earlier, which would have been in 2010, at the age of 62. Treatment notes from 2005 indicate that the Veteran last worked in 1997 and that he stopped working because of gout and back problems, without reference to the Veteran’s gunshot wound. The Veteran’s education and long work history in the field of construction indicate that the Veteran has the capacity for learning and training that would allow the Veteran to perform substantially gainful employment in a line of work that is less physically demanding than his prior work. The evidence supports a finding that the Veteran is physically capable of performing substantially gainful employment prior to October 2020. As stated, the Veteran has not experienced any lasting limitations resulting from his history of a hernia. Prior to October 2020, by the Veteran’s own admission, he was capable of lifting up to 20 pounds, despite his pain and associated symptoms, although he specifically included his back as part of the reason he could not lift more than 20 pounds, which, again, is not a service-connected disability. Treatment records showed the Veteran to be independent in his activities of daily living and to have predominantly normal findings on respiratory and musculoskeletal examination. The Veteran’s limitations otherwise appear to be associated with nonservice-connected disabilities, such as degenerative conditions involving the back, hips, and knees. Although the Veteran may have been precluded from returning full time to his past work in construction, it appears that the Veteran’s service-connected limitations could be accommodated by an occupation that does not require lifting or carrying more than 20 pounds. The preponderance of the evidence is against a finding that the Veteran’s gunshot wound or history of right inguinal hernia restricted the Veteran’s ability to perform substantially gainful employment prior to October 2020. As to the Veteran’s mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran’s service-connected disabilities have not been shown to cause the Veteran communicative deficits. Even when considering nonservice-connected disabilities, the Veteran’s treatment records indicate predominantly normal findings on mental status examination with intact cognitive functioning, normal behavior, fair judgment and insight, an organized and linear thought process, no delusions or perceptual disturbances, and fair concentration and attention. As the Veteran’s service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence is supports a finding that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of full-time work that would result in income at the level of substantially gainful employment prior to October 20, 2020. For example, there are jobs that could be performed from home, such as a telemarketer, where the employee makes calls and reads a script, which would not require extensive training or experience, would not necessarily involve new tasks or novel concepts, and would require minimal exertional activity. Similarly, the Veteran would be capable of performing certain cashier positions, or work as a ticket taker, or library or museum attendant, positions that would not require significant physical exertion exceeding the limitations caused by his service-connected disabilities. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that Veteran was precluded from all forms of substantially gainful employment prior to October 20, 2020 due solely to his service-connected disabilities, which, prior to October 2020, combined to a 10 percent rating. Therefore, entitlement to an extraschedular TDIU during the appeal period is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an extraschedular TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.