Citation Nr: 21015910 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-04 102A DATE: March 18, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis prior to August 23, 2011 is denied. FINDING OF FACT Prior to August 23, 2011, the Veteran’s combined disability rating did not meet the schedular criteria for TDIU, and the preponderance of the evidence is against a finding that his service-connected disabilities rendered him incapable of obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU on an extraschedular basis prior to August 23, 2011 have not been met. 38 U.S.C. §§ 501, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1990 to August 1991. This appeal initially came before the Board of Veterans’ Appeals (Board) as a claim for service connection for a cervical spine disability. After that service connection claim was resolved in the Veteran’s favor by a December 2014 Board decision, the Veteran then pursued an increased rating and TDIU. That TDIU claim previously reached the Board in June 2017, February 2019, and October 2020. During this appeal, the Veteran sought compensation for additional disabilities which were resolved by various decisions that were themselves subject to various appeals that have been resolved by appropriate decisions at the local regional office or of the Board. They are no longer on appeal, and the only issue remaining on appeal is entitlement to a TDIU on an extraschedular basis prior to August 23, 2011, which was remanded in October 2020. The Veteran testified at a hearing before the undersigned VLJ in October 2014. Entitlement to TDIU on an extraschedular basis prior to August 23, 2011 A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38C.F.R. § 4.16(b). However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38C.F.R. § 4.16(a), to the Director for extraschedular consideration. 38C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). The Board has jurisdiction to review determinations by the Director. Wages v. McDonald, 27 Vet. App. 233 (2015). In determining whether a veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can actually find employment. Id. Prior to June 1, 2011, the Veteran’s combined evaluation for his service-connected disabilities was 40 percent, representing a noncompensable evaluation for his headache condition, a 20 percent evaluation for his right upper extremity radiculopathy condition, a 10 percent disability rating for his right shoulder condition, a 10 percent evaluation for his lumbar spine condition, and a 10 percent evaluation for a cervical spine condition. From June 1, 2011 to August 23, 2011, the Veteran’s combined disability rating was 60 percent disability rating, representing an increase in his disability rating for his headache condition. The Veteran’s combined disability ratings did not meet the schedular criteria for a TDIU during the periods prior to August 23, 2011. Nevertheless, the Veteran and his wife, who is a nurse, have repeatedly submitted statements asserting that the Veteran’s conditions have rendered him unable to obtain or maintain substantially gainful employment since 2007. Supporting the Veteran, the Veteran’s representative has argued that the Veteran’s combination of disabilities have rendered him unable to work, citing records such as: (1) the March 2009 compensation and pension examination of the Veteran’s neck and back conditions where the Veteran was assessed as unable to sit or stand for more than 15 minutes, unable to lift more than 20 pounds, and prone to flare ups at least twice per week that the Veteran indicated lasted for a whole day each time and required him to stop all physical activity; (2) a Social Security Administration residual functional capacity examination from June 2010, where the Veteran was assessed as being able to occasionally lift or carry 20 pounds, but frequently only able to lift or carry 10 pounds, was limited in the ability to reach in all directions, and unable to use ladders, scaffolds, and hazards as a result of his prescribed narcotic pain medication; and (3) a July 2011 compensation and pension examination of the Veteran’s right shoulder condition where the Veteran reported flare ups lasting one to two days, and the examiner noted that the Veteran’s condition affected his function, as he was visibly in pain and unable to remain still due to pain and discomfort. Notably, the Veteran’s representative highlighted psychiatric symptoms, but the Veteran did not have a psychiatric condition that was service-connected during this period. Similarly, the Veteran has submitted an opinion from a vocational consultant dated May 2018, stating that the Veteran was totally disabled as of his initial date of service connection on August 25, 2008. This opinion cites as evidence similar portions of the record as those highlighted by the Veteran’s representative and as described above, and, also like the arguments set forth by the Veteran’s representative (who specifically cites psychological symptoms as factors in the Veteran’s total disability—psychological symptoms for which the Veteran was not service-connected during the relevant period of the appeal). Further review of the record indicates that the Veteran was in a car accident in May 2007 that was the immediate cause for his leaving the work force. Non-VA treatment records from the following month indicate that the Veteran was kept out of work for a time following this accident, but that he was permitted to return to work following treatment by at least July 2008, near the time that he sought service connection for his neck disability that began this appeal. Similarly, a reading of the records cited by the Veteran’s representative and the vocational experts reveals that they have accurately reported the symptoms that the Veteran reported to the examiner when he was examined for his right shoulder, cervical spine, and lumbar spine conditions in March 2009. However, the examination, far from confirming pain that prevented him from getting out of bed, indicated a veteran able to perform the tests and having significant range of motion in the relevant joints. Moreover, the Veteran’s non-VA treatment records indicate that the Veteran was able to gain a great deal of function after physical therapy. In July 2009, he was discharged from a physical therapy program having achieved the ability to perform all activities without pain and even lift 60 pounds without low back pain. A VA treatment record in July 2010 appears to indicate that the Veteran had re-entered the work force in some respect, as he recounted “lifting a power washer at work.” Statements from the Veteran and his wife in September 2010 argued that the Veteran was unemployed as a result of both physical and psychiatric symptoms. The July 2011 general medical VA examination, and other medical records, acknowledge that the Veteran was at times visibly uncomfortable due to pain in his back, neck, and shoulder. At the July 2011 VA examination, the Veteran was even observed to be constantly in motion due to his pain, and the movement helped mask the pain that he felt. The Board acknowledges, as it did in October 2020, that the claims file contains some evidence that the Veteran’s service-connected disabilities may have caused him to be unable to obtain and maintain substantially gainful employment during the period prior to August 23, 2011. Consequently, the Board remanded this portion of the appeal for an opinion from the Director Compensation Service, who provided a negative opinion indicating that the Veteran was capable of doing light or sedentary work. Accordingly, after a review of this evidence, the Board finds that the evidence of record does not establish that, prior to August 23, 2021, the Veteran was unable to obtain or maintain substantially gainful employment as a result solely of his service-connected conditions. The evidence simply is not amenable to that interpretation during the period prior to August 23, 2011. Indeed, even the arguments advanced by the Veteran, his wife, his representative, and his chosen expert, reach beyond the physical disabilities for which he was service-connected during this period and include psychiatric symptoms that were not a part of his service-connected disability picture. Thus, while it may be the case that the Veteran’s physical and psychiatric conditions may have together rendered him unemployable during this period, it is not the case that the Veteran’s service-connected conditions alone did so. Consequently, because the evidence of record indicates that the symptoms of the Veteran’s neck, back, right shoulder, right upper extremity radiculopathy, and headache condition were not sufficient to prevent him from obtaining and maintaining substantially gainful employment during the period prior to August 23, 2011 in the absence of the psychiatric symptoms on which the Veteran, his wife, his representative, and chosen expert all rely, the Board finds that entitlement to TDIU on an extraschedular basis during the period prior to August 23, 2011 is not warranted. This appeal is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.