Citation Nr: 21014027 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-15 876 DATE: March 11, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT Throughout the appeal period the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1961 to July 1965. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in September 2019, at which time it was remanded for additional development. At the outset, it is noted that the TDIU claim arose out of an October 2014 claim for increase in the rating for the Veteran’s low back disability. Therefore, the appeal period extends from then. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. 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 as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this 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 sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). 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 non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. “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 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service connected for a back disability, (intervertebral disc syndrome right foot drop secondary to laminectomy), evaluated at 60 percent effective February 9, 2001; right lower extremity radiculopathy at 10 percent effective August 28, 2010; status post extensor tendon repair, right third finger and tinnitus at 0 percent; and a scar at 0 percent. Thus, for the entire appeal period the Veteran met the schedular criteria for an award of TDIU benefits. Treatment records indicate the Veteran had been a lobbyist with the United Mine Workers until 1995, a position from which he retired at age 52. He later served a term as a state legislator between 2007 and 2010. He apparently has not been employed after 2010, although treatment records dated in 2011 show muscular complaints from “hard working.” More current to the appeal period, the Veteran’s February 2015 VA back examination indicated that the Veteran’s foot drop condition and radiculopathy caused him to trip often at work as a state legislator and that, due to his leg pain and back weakness, he would have to take breaks and sit down often. In a September 2015 Residual Function Capacity Examination, it was indicated that in an 8 hour work day, the Veteran’s back disability and radiculopathy caused him to be only able to stand 2 to 4 hours; walk 2 to 4 hours; sit 4 to 6 hours; lift consistently 10 to 20 pounds; carry consistently 10 to 20 pounds; but not miss any days work. It also was noted that about half the time he would require one or more extra breaks per day, but that the Veteran’s concentration would be basically normal. In a May 2016 private evaluation, the examiner, H. Skaggs, MD., expressed the view it was more likely than not the Veteran is unable to maintain substantial gainful employment as a result of his service connected back disability. He reasoned the Veteran had difficulty with simple household chores due to frequent stumbling and foot drop, as well as difficulty concentrating due to pain and fatigue. It was noted that even sedentary work is difficult as prolonged sitting causes pain. In this regard, the examiner noted that as a lobbyist, the Veteran was given permission to take breaks, alternating sitting and standing, and even lay down on certain occasions. More currently, the examiner indicated that the Veteran could only stand or sit for about 40 minutes at a time, before he experiences unbearable pain. In the course of an 8 hour day, the Veteran would be unable to stand, walk, sit and/or stoop for less than 2 hours; only lift or carry less than 10 pounds consistently; would need to leave early 3 or more days per month; would need more than one additional break per day aside from a normally scheduled morning, lunch and afternoon break; and for more than 3 days per month he would not stay focused for at least 7 hours of an 8 hour work day. Later treatment records show that in 2017, the Veteran apparently made an extended trip to Hawaii (from Florida) and in 2018, he identified his hobbies and leisure activities as fishing, watching movies and computer games. In 2019 records, it was noted the Veteran was moving from Florida to West Virginia, and fell from the back of his U-Haul when he missed the bumper stepping down. These are all notable for the activities and concentration obviously required to accomplish them, and in the case of the U-Haul incident, the lack of complaints relating to his service connected disabilities. At that time, his complaints related to his arm and head. As the Veteran meets the schedular requirements for consideration of a TDIU, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs against finding that the Veteran’s service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. Evidence shows the Veteran was employed as a lobbyist and a state legislator after service, but the Veteran has not provided evidence dispositive of whether he has actually been unemployed throughout the appeal period. While the Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, the weight of the evidence does not present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination, is not contemplated within the relevant rating criteria. (Continued on the next page)   While VA examinations and private examinations held for the Veteran’s disabilities, note they made his work difficult, they did not reveal gainful employment was precluded. In this regard, it is noted the May 2016 private examiner found that the Veteran was unemployable, yet he discussed impairment consistent with previous examinations that showed the Veteran was fully capable of working in a sedentary capacity given the right accommodations. The Board does not doubt that the Veteran’s disabilities cause him pain and inconvenience as described in the examinations. However, it is clear that the Veteran was able to work through these in order to maintain gainful employment. For his part, the Veteran has not identified or submitted any other evidence demonstrating his entitlement to a TDIU or why specifically he would be no longer suited to work in a similar employment setting as he was apparently capable of doing previously. Loss of industrial capacity is the principal factor in assigning schedular disability ratings, and the Board believes that the symptomatology associated with the Veteran’s service-connected disabilities are appropriately compensated at the levels currently assigned. As the Veteran has not otherwise identified or submitted any evidence demonstrating his entitlement to a TDIU under the circumstances of this case, entitlement to TDIU benefits is not shown. Accordingly, the appeal is denied. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.