Citation Nr: 21021689 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-10 235 DATE: April 13, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied for the period prior to February 5, 2016. FINDING OF FACT Prior to February 5, 2016, the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2011 to May 2013. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for additional development in a July 2020 Board decision. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Entitlement to a TDIU prior to February 5, 2016 In a December 2014 VA examination, the Veteran alleged that his left knee disability contributed to his inability to secure and maintain substantially gainful employment. This raises the issue of whether the Veteran is entitled to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In accordance with Rice, entitlement to a TDIU is considered part and parcel to the increased rating claim already on appeal. Thus, the Board has jurisdiction to consider this issue. In a September 2016 rating decision, the RO granted the Veteran entitlement to TDIU from February 5, 2016. This appeal addresses the period prior to that date. Total disability ratings will be assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a). TDIU may be assigned to a veteran who meets certain disability percentage thresholds and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a). The central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A higher rating alone is recognition that the impairment makes it difficult to obtain and maintain employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to February 5, 2016, the Veteran is service connected for posttraumatic stress disorder (PTSD), with a 50 percent disability rating from May 30, 2013; lumbar disc herniation with a 10 percent rating from May 30, 2013 and a 20 percent rating from May 6, 2015; and left knee patellofemoral syndrome with a 10 percent disability rating from May 3, 2013. The Veteran’s combined disability rating prior to February 5, 2016 was 60 percent from May 30, 2013, as a consequence of disabilities of multiple body systems not of the same etiology. Thus, the Veteran did not meet the criteria under 38 C.F.R. § 4.16(a) for schedular consideration for TDIU prior to February 5, 2016. It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, where, as here, the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability and the case may be submitted to the Director of the Compensation Service for consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director of the Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In this case, by way of a July 2020 Board remand, the Board referred the appeal to the Director of the VA Compensation Service for extraschedular consideration. In a December 2020 Advisory Opinion, the Director denied entitlement to a TDIU. She explained that although the Veteran has not worked since separation from military service in 2013; overall, she found his PTSD symptoms to be moderately impairing. In terms of the Veteran’s back disability, the Director noted that there was painful motion with reduced motion but no lower extremity neurological impairment. She also noted that the Veteran suffered from left knee pain caused by his service-connected patellofemoral syndrome. The Director reasoned that any service-connected disability can be expected to impart some impairment in performing gainful employment but noted that simply having some impairment does not equate to total disability. In sum, the Director found that in the Veteran’s case, the inability to maintain employment was not shown. See December 2020 Advisory Opinion, extraschedular consideration of a TDIU. The Board notes that the Director’s decision is not evidence, but rather an Agency of Original Jurisdiction decision. The Board is not bound by the Director’s decision, but instead must conduct a de novo review of that decision on appeal. Wages v. McDonald, 27 Vet. App. 233 (2015). Here, however, the Board agrees that an extraschedular TDIU is not warranted because the preponderance of the evidence is against finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities for the period prior to February 5, 2016. The Veteran reported that his PTSD was the service-connected disability that prevented him from securing or following any substantially gainful employment. However, he also noted that his service-connected left knee and back disabilities impacted his ability to obtain and maintain employment. The Veteran reported that he became too disabled to work in November 2013, a few months after discharge from the military. See October 2014 VA 21-8940 Veteran’s Application for Increased Compensation based on Unemployability. He noted that he worked as a waiter for two weeks in November 2013 but was terminated after he dislocated his knee and could not return to work. The Veteran reported that his stepfather tried to help him find work with the carpenter union but due to his back limitations, they were unable to hire him. He reported that he applied for a medical billing position but was not hired. He stated that despite the option for a desk job, he believes that his inability to sit for long periods of time due to his pain would prevent him from accepting a position. See December 2014 VA PTSD examination. In terms of his education, the Veteran reported that he completed high school but not college and did not have any other education or training before or since he became too disabled to work. See October 2014 VA 21-8940 Veteran’s Application for Increased Compensation based on Unemployability. The Veteran reported that he is planning to attend college in the future but did not have the financial means to enroll. See April and December 2014 VA PTSD examinations. Throughout the appeal period, the severity of the Veteran’s service-connected PTSD, lumbar disc herniation and left knee patellofemoral syndrome have been evaluated by several different medical providers, none of whom described symptoms or a level of functional impairment severe enough to render him unemployable. Regarding the impact of the Veteran’s PTSD symptoms on his ability to obtain and maintain employment, a December 2014 VA examiner opined that his current PTSD symptoms would not preclude employment. She noted that the Veteran’s current symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. However, despite these PTSD symptoms, she ultimately concluded that the Veteran’s PTSD resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, rather than rendering him unemployable. Moreover, during this examination, the Veteran himself noted that it was not his PTSD that prevented his employment but rather his physical limitations. The psychologist noted that any occupational limitation due to his physical concerns should be deferred to a medical provider. See December 2014 VA PTSD examination. The Board notes that during a VA PTSD examination a few months earlier in April 2014, when describing his occupational history, the Veteran reported that after his discharge from the military, he could not retain a job because of his PTSD symptoms. The April 2014 VA examiner opined that the Veteran would have difficulty adapting to stressful circumstances and difficulty in establishing and maintaining effective work relationships. Despite these difficulties, she determined that the Veteran’s PTSD resulted in deficiencies in most areas including work but did not find that the severity of his PTSD resulted in total occupational impairment. See April 2014 VA PTSD examination. The Board attaches high probative value to the April and December 2014 VA examiners’ opinions regarding the level of occupational impairment caused by the Veteran’s PTSD. The VA examiners are experienced with assessing disability impairments and their findings are consistent with the other medical evidence of record. Prior to February 5, 2016, outpatient treatment notes contain several entries assessing the severity of the Veteran’s PTSD. An October 2014 polytrauma neuropsychology note reported that the Veteran was experiencing pervasive anxiety and socially isolates himself. An April 2015 entry noted that the Veteran’s thinking was clear and stated that he did not exhibit signs of extreme anxiety. A June 2015 entry noted that the Veteran presented calm, sociable, and engaging. He did not exhibit signs of extreme irritability or severe anxiety or panic. His mental status exam reflected linear and logical thought processes and fair cognition. In short, after examining the outpatient treatment records for the period on appeal, the Board finds no indication of PTSD symptoms that were not already documented by the VA examiners in 2014 and 2015 and that would result in unemployability. Although the evidence reflects that the Veteran’s PTSD results in difficulty interacting with others and maintaining relationships, the Board finds that the Veteran would still be able to obtain a form of employment where he would primarily work independently and that was not centered around maintaining relationships or frequent interaction with coworkers. Further, regarding his sleep impairment, the Veteran has reported that he took trazodone which helped him fall asleep but noted that it caused somnolence the next day. See March 2015 outpatient treatment note. The Board finds that chronic sleep impairment, which results in daytime drowsiness and possibly being tardy for work, is not sufficient to render the Veteran unemployable. In sum, medical examiners during the appeal period have not found that the Veteran’s PTSD is severe enough to prevent employment. The December 2014 VA examiner opined that the Veteran’s PTSD symptoms would not preclude employment and the April 2014 VA examiner reported deficiencies in most areas but did not find that the Veteran’s PTSD resulted in total occupational impairment. As such, the Board finds that the preponderance of the medical evidence is against finding that the Veteran’s PTSD is severe enough to produce unemployability for the period prior to February 5, 2016. The Board acknowledges that the Veteran is not currently working, however, the record does not show that he has been terminated from a job due to his PTSD. In fact, he reported that he stopped working as a waiter in 2013 when he dislocated his knee, rather than due to PTSD symptoms. He also reported that he was unable to find work as a carpenter due to his back disability, not PTSD symptoms. See December 2014 VA PTSD examination. Turning to the Veteran’s service-connected lumbar disc herniation, prior to February 5, 2016, the Board finds that the evidence does not reflect symptoms and resulting functional impairment severe enough to preclude the Veteran from working. Significantly, after examining the Veteran, the May 2014 VA examiner opined that his lumbar spine disability did not impact his ability to work. The examiner noted that the Veteran’s functional impairment included pain on movement. At this examination, the Veteran reported intermittent low back pain with no radiating pain or numbness in the lower extremities. On examination, forward flexion was to 75 degrees, 15 degrees short of full range of motion, with pain beginning at 75 degrees and extension was to 20 degrees, with a normal endpoint of 30 degrees, with pain beginning at 20 degrees. Left and right lateral flexion and rotation were all to 25 degrees, 5 degrees short of full range of motion. The examiner reported no additional limitation in range of motion following repetitive use testing and noted that the Veteran did not report that flare-ups impacted the function of his spine. No evidence of muscle spasms or guarding resulting in abnormal gait was found. The examiner noted that the Veteran had intervertebral disc syndrome (IVDS) but had not experienced any incapacitating episodes over the past twelve months due to IVDS. The Veteran was afforded another VA lumbar spine examination in October 2015, where the examiner again opined that the Veteran’s lumbar spine disability did not impact his ability to work. At this examination, the Veteran reported that his back pain was aggravated by sitting. The examiner noted that the Veteran did not report having any functional loss or functional impairment of the lumbar spine regardless of repetitive use. He opined that although range of motion was abnormal on examination, pain did not result in or cause functional loss. The Veteran was not able to perform repetitive use testing with at least three repetitions, but the examiner reported that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Radicular pain or any other signs or symptoms due to radiculopathy were not found. See October 2015 VA spine examination. In an October 2014 psychology progress note, the Veteran reported that he had been unable to sustain employment due to back pain, with the psychologist noting that he experienced low back pain with severe radiation down his legs that was often incapacitating. However, as noted above, May 2014 and October 2015 VA physicians found no evidence of lumbar radiculopathy and opined that the Veteran’s lumbar spine disability would not prevent employment. The Board affords the May 2014 and October 2015 VA examiners’ opinions more probative weight than the October 2014 psychologist’s assessment as they are medical professionals qualified to assess the severity of the Veteran’s lumbar spine disability, whereas, a psychologist is not. In a December 2014 letter, the Veteran reported that he cannot walk a block without limping and did not get relief laying down or sitting. He also reported radiating pain down both legs. See December 2014 statement from the Veteran. The Board acknowledges the Veteran’s complaints of back pain which can be severe at times and would most likely be exacerbated by a job that entailed prolonged walking or sitting as noted by the Veteran. However, no clinician has opined, and the record does not describe, functional impairment of the lumbar spine severe enough to render the Veteran incapable of performing the physical acts required by employment. In fact, after conducting thorough examinations to assess the severity of the Veteran’s lumbar spine disability, both the May 2014 and October 2015 VA examiners opined that the Veteran’s diagnosed lumbar disc herniation would not impact his ability to work. The Board finds the medical providers opinions persuasive and entitled to significant probative weight. Finally, regarding the severity of the Veteran’s service-connected left knee patellofemoral syndrome, the May 2014 VA examiner found that the Veteran did not experience functional loss or functional impairment of the left knee. During May 2014 and October 2014 VA examinations, the Veteran reported intermittent left knee pain aggravated by prolonged walking or sitting and noted that his left knee buckles at times. He also reported that he was not currently undergoing any treatment for his left knee. On examination in May 2014, left knee flexion and extension were normal, with no objective evidence of painful motion. On examination in October 2015, left knee extension was normal and although the Veteran’s left knee flexion was ten degrees short of full range of motion, the examiner noted that his range of motion itself did not contribute to functional loss and reported that pain did not result in or cause functional loss. There was no evidence of recurrent subluxation, lateral instability, recurrent effusion or ankylosis. At this 2015 examination, the Veteran reported that he used a cane regularly. Significantly, after examining the Veteran to assess the severity of his left knee disability, the May 2014 and October 2015 VA examiners’ both opined that his left knee patellofemoral syndrome did not impact his ability to work. Specifically, the October 2015 VA examiner opined that the Veteran’s left knee patellofemoral syndrome did not impact his ability to perform any type of occupational task, such as standing, walking, lifting, and sitting. Given the medical evidence just described, the Board finds that the Veteran’s left knee patellofemoral syndrome is not severe enough to produce unemployability. In conclusion, after considering the Veteran’s employment and educational background, as well as the severity of his service-connected PTSD, lumbar disc herniation and left knee patellofemoral syndrome, the Board finds that prior to February 5, 2016, the Veteran is not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Accordingly, the claim of entitlement to a TDIU prior to February 5, 2016 is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.