Citation Nr: 21016183 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 07-09 617 DATE: March 22, 2021 ORDER Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The preponderance of the competent and credible evidence of record indicates that the service-connected disabilities have not precluded the Veteran from securing and following substantially gainful employment at any time throughout the period of appeal. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met at any time throughout the period of appeal. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to September 1967, November 1987 to May 1988, and in June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2006 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2010, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This issue was previously remanded in June 2010, October 2013, August 2017, November 2018, and August 2020. The Board notes that the actions requested in the remands have been undertaken to the extent possible. Treatment records and examinations have been obtained by the Agency of Original Jurisdiction (AOJ). The case was referred to the Director of the Compensation Service for a decision regarding entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b). In January 2021, the Director issued a decision. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. Stegall v. West, 11 Vet. App. 268 (1998). In the October 2013 remand, the Board noted that the evidence raised a claim of entitlement to TDIU as a component of the claim for a higher rating for a neck disability. Therefore, the Board took jurisdiction of the issue of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. For the purpose of one 60 percent disability or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; and/or disabilities affecting a single body system, such as orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric. The existence or degree of nonservice-connected disabilities will be disregarded if the percentage requirements are met and the evaluator determines that the service-connected disabilities make a Veteran incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, the central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (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 age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to December 30, 2015 Prior to December 30, 2015 the Veteran’s service-connected disabilities were degenerative changes of the cervical spine, rated 10 percent; left knee degenerative joint disease (DJD) and meniscal tear, rated 10 percent; right knee DJD and meniscal tear, rated 10 percent; and lumbar spine DJD, rated 0 percent. The combined disability rating was 30 percent. Thus, prior to December 30, 2015, the Veteran did not meet the schedular criteria for consideration of entitlement to TDIU under 38 C.F.R. § 4.16(a). Nevertheless, the Veteran may be entitled to a TDIU if it is established that he was unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment, or work that was more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making a determination, VA considers factors such as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Board is required to obtain the Director's decision before the Board may award TDIU under 38 C.F.R. § 4.16(b). Wages v. McDonald, 27 Vet. App. 233 (2015). In cases of Veterans who evidence suggests are unemployable by reason of service-connected disabilities and who do not meet the threshold percentage requirements of 38 C.F.R. § 4.16(a), the case is to be submitted to VA's Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(b). The Board requested that the AOJ refer the appeal to the Director, Compensation Service. In a January 2021 Advisory Opinion, the Director denied entitlement to TDIU. The Board notes that the Director's decision is not evidence, but an Agency of Original Jurisdiction decision, and the Board must conduct de novo review of that decision on appeal. Wages v. McDonald, 27 Vet. App. 233 (2015). A review of the record shows that in June 2012, October 2013, and April 2020 the RO sent the Veteran VA Form 21-8940, requesting the Veteran’s employment history. The Veteran did not return the form or otherwise provide employment information. Although the Board observes that Social Security Administration (SSA) records of October 2003 describe the Veteran’s work history, the reasons for termination were not reported. Those records show that he previously worked as a mechanic, maintenance superintendent, and auction assistant. He reported three years of college education and a basic computer class. During a February 2006 VA examination, the Veteran reported past work as an aircraft mechanic and electrician. He stated that he was no longer able to work as a mechanic due to constant neck pain and difficulty turning his head and bending. The Veteran reported receiving Social Security disability benefits. The examination report showed some limitation of motion of the neck, but did not address functional limitations or provide an occupational opinion. During July 2010 VA neck and knee examinations, the Veteran reported that his knee made walking more than one quarter of a mile or standing more than 15 minutes difficult. He reported missing work frequently when he was employed due to the neck disability and stated that he had difficulty bending, using the neck, or walking more than two hours. The examiner concluded that the service-connected cervical spine and knee disabilities at least as likely as not made the Veteran unable to secure or follow a substantially gainful occupation. The examiner reasoned that the disability prevented the bending and maneuvering required in the Veteran’s past work as an electrician and a mechanic. In an application for Social Security Disability benefits, the Veteran stated that the conditions that limited the ability to work were back and neck problems and problems with both knees. Social Security Disability benefits were awarded with an established onset date of August 2002. The primary diagnosis was osteoarthrosis and allied disorders, and the secondary diagnosis was discogenic and degenerative back disorder. SSA records state that x-ray evidence of “severe hypertrophic osteo arthritis of the hands which impair flexion and extension” supports the conclusion that the Veteran’s ability to work was limited. The Board observes that the bilateral hand disability is not service-connected and may not be considered for purposes of establishing TDIU. Therefore the Board finds the SSA disability determination of limited probative value. The Board acknowledges the July 2010 VA examiner’s opinion that the service-connected disabilities would make the Veteran unable to maintain gainful employment. The examiner’s rationale for that conclusion only discussed the Veteran’s ability to perform tasks required in previous work as an electrician and mechanic and did not offer an opinion about the ability to perform occupational tasks required in less active work. After reviewing the entire record, the Board concludes that entitlement to TDIU prior to December 30, 2015, was not warranted. The most probative evidence of record shows that, solely considering the service-connected disabilities, the Veteran more likely than not would have been capable of the acts required to obtain and maintain gainful employment. The Board finds that the evidence does not show anything out of the ordinary, or not average, in the Veteran's situation as a result of the service-connected bilateral knee, ankle, and tinnitus disabilities. While the Veteran would have trouble with bending, using his neck, or walking more than two hours, the weight of the probative evidence of record does not indicate that he was unable to perform some type of substantially gainful employment specifically as a result of the service-connected disabilities, with consideration of training and experience, and without consideration of age or nonservice-connected disabilities. The evidence shows difficulty bending and turning the head. However, the evidence of record does not establish that it is at least as likely as not that those symptoms of the service-connected disabilities precluded securing or following any type of gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to TDIU prior to December 30, 2015. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As of December 30, 2015 As of December 30, 2015, the service-connected disabilities are degenerative changes of the cervical spine, rated 20 percent; left upper extremity radiculopathy, rated 20 percent; right upper extremity radiculopathy, rated 20 percent; left knee degenerative joint disease (DJD) and meniscal tear, rated 10 percent; right knee DJD and meniscal tear, rated 10 percent; lumbar spine DJD, rated 10 percent; and residual scar of the right knee status post meniscal repair, rated 0 percent. The combined service-connected disability rating is 70 percent as of December 30, 2015. With consideration of the bilateral factor, the Veteran’s degenerative changes of the cervical spine, left upper extremity radiculopathy, and right upper extremity radiculopathy may be considered as one disability with a combined rating of 40 percent or greater because they share a common etiology. Alternatively, degenerative changes of the cervical spine, bilateral knee DJD, and lumbar spine DJD may be considered as one disability with a combined rating of 40 percent or greater because they affect a single body system. Thus, the Veteran meets the minimum schedular criteria for consideration of entitlement to TDIU under 38 C.F.R. § 4.16(a) as of December 30, 2015, but not earlier. During January 2016 VA neck, knee, and back examinations, the Veteran stated that the knee disabilities make him unable to run or repeatedly climb stairs; the neck disability limited the ability to fully turn the neck; and that the back disability limits the ability to lift or move heavy items. The examiner concluded that the Veteran should avoid frequent stair climbing due to the knee disabilities. The examiner also concluded that the neck and back conditions did impact the Veteran’s ability to work, but did not provide a rationale. The examiner commented the Veteran’s ability to obtain or maintain substantially gainful employment was a legal or vocational question and as a medical professional, the examiner was not competent to provide an opinion. The examiner offered only the Veteran’s opinion about the impact of the disabilities on occupational activity. In July 2016, an addendum opinion was obtained to clarify the January 2016 opinion. The examiner stated that the Veteran’s service-connected disabilities of degenerative arthritis of the thoracolumbar spine, degenerative arthritis of the cervical spine, and degenerative arthritis of the knees were likely to impact the ability to perform physical activities in an occupational environment due to reduced motion in the cervical spine, lumbar spine, and bilateral knees. VA treatment records of July 2016 indicate pain and limited motion of the right upper extremity. The Veteran reported that he “is active working in his yard.” The report of an October 2019 VA neck examination noted diagnoses of cervical spine degenerative disc disease and bilateral upper extremity radiculopathy. During the examination, the Veteran reported that he was unable to run, lift 40 to 70 pounds, do work using a computer, or type. Based on the cervical spine conditions, the examiner concluded that the Veteran should avoid occupational tasks involving overhead lifting, pulling, or pushing; prolonged sitting; and excessively turning the head. The examiner explained that those occupational tasks can aggravate the cervical spine conditions or cause personal harm. The Board finds that from December 30, 2015, the evidence does not support a finding that the service-connected disabilities caused a significantly diminished level of functioning such that the Veteran is unable to obtain or retrain for work. The most probative evidence of record shows that, considering only the service-connected disabilities, the Veteran more likely than not would be precluded from obtaining and following gainful employment. While the Veteran would have trouble with overhead tasks, prolonged sitting, and excessively turning the head, the weight of the probative evidence of record does not indicate that he is unable to perform some type of substantially gainful employment specifically as a result of service-connected disabilities, with consideration of training and experience, and without consideration of age or nonservice-connected disabilities. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent the service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for that impairment. The Board finds that the greater weight of the probative evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disability. The Board finds that the opinions of the examiners are the most persuasive evidence in this case. The Veteran has not submitted any contrary competent evidence suggesting that he is unable to work due to service-connected disabilities. Accordingly, the Board finds that entitlement to TDIU is not warranted at any time from December 30, 2015. The preponderance of the evidence is against a finding that the Veteran would be unable to obtain gainful employment as a result of the service-connected neck disability, and the evidence does not show that the disabilities in combination would result in unemployability. The Board notes that the Veteran stated to a VA examiner that the disabilities caused him to retire. However, the evidence of record indicates that the Veteran previously reported that he had not been employed “regularly” since separation from service. The evidence shows that the Veteran has physical disabilities, but the evidence does not show that the Veteran would be unable to perform employment with less physical demands. Accordingly, the Board finds that the preponderance of the evidence is against the claim, the claim for TDIU must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke, 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.