Citation Nr: 21022585 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 09-21 011 DATE: April 16, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The most probative evidence is against a finding that the Veteran’s service-connected disabilities rendered him unable to secure and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to November 2004, to include service in Southwest Asia. He was awarded a Purple Heart Medal and Combat Action Ribbon, among other decorations. The Veteran died in November 2015 and the appellant is his surviving spouse. In an August 2012 remand, the Board of Veteran’s Appeals (Board) found that the matter of entitlement to a TDIU had been raised by the Veteran in a December 2011 statement as part of his claim for an increased rating for his right shoulder disability. A Department of Veterans Affairs (VA) regional office subsequently denied the matter in a February 2014 rating decision and the Board again remanded the claim in November 2014. After the Veteran’s death, the appellant was substituted into the Veteran’s pending appeal. The Board notes that, during his life, the Veteran never asserted that his disabilities rendered him unemployable, although he did contend that they affected his work. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any 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. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran met the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected posttraumatic stress disorder (PTSD), right shoulder disability, left knee disability, and right infraspinatus tendinopathy. 38 C.F.R. § 4.16(a). Military personnel records reflect the Veteran’s military occupation specialty (MOS)/rating was that of combat engineer. As noted above, the Veteran never asserted that his service-connected disabilities rendered him totally unemployable; he never submitted an application for a TDIU laying out his work and educational history. However, most of this information can be gleaned from the Veteran’s treatment records and VA examinations conducted in conjunction with his appeals. The record reflects that the Veteran generally worked full-time during the period on appeal. During an August 2007 VA examination, he reported that he graduated high school as an above average student and that he had been working full-time as an arborist on a tree farm for the past one and a half years. He worked closely with a cousin, which he enjoyed. In September 2011, he reported that he was working for a construction company. In April 2015, the Veteran indicated that he had been working as an iron worker for the past three and a half years. This work was sporadic because it was a union job and the Veteran had to wait to be called for work. In October 2015, the Veteran reported that he had been working full-time at a paper mill for several months; he left the iron working job due to the inconsistent nature of the work. With respect to the Veteran’s perception regarding his employability, that Board notes that on multiple occasions he described himself as a hard worker. In May 2008, he reported that he had changed jobs three times since 2005 because he needed to work independently and could not handle any jobs that exposed him to loud noises. As noted above, he indicated that he enjoyed working closely with his cousin, but he also reported that working with people he didn’t know was challenging. In September 2008, the Veteran asserted that he had problems understanding complex commands and understanding more than one task at a time. In September 2011 and April 2015, he noted that his right shoulder sometimes slowed him down at work. In April 2015, he stated that working went well and that he kept to himself and did what he was told to do. He indicated that he had a good work ethic and tended to get along with others. The Veteran presented for a VA examination in June 2008, September 2011, and April 2015 to assess the current severity of his service-connected right shoulder disability, including right infraspinatus tendinopathy, at which time he was interviewed by the examiners who also reviewed the pertinent medical history and performed examinations. The Veteran reported pain, lack of endurance, and flares triggered by excessive work with the upper extremities. The examiners reported that the shoulder disability could impose work restrictions in fields of heavy manual labor. When asked to describe the functional impact the Veteran’s disability had on his ability to work, the September 2011 examiner noted that the Veteran had normal range of motion but lacked endurance when it came to repetitive lifting, and that the Veteran avoided using the right shoulder at work when possible. The April 2015 examiner reported that the Veteran would not be restricted from sedentary, light, or medium labor, but that his right shoulder caused more pain in the winter and sometimes required rest. The Veteran presented for a VA examination in April 2015 to assist the severity of his service-connected left knee disability. The Veteran reported that climbing stairs made his knee hurt, but otherwise he did not have problems with the left knee. The examiner noted that the Veteran’s left was not painful on examination and there was no reduction of strength. When asked to describe the functional impact the Veteran’s disability had on his ability to work, the examiner noted only increased pain with climbing stairs at work. The Veteran presented for VA PTSD examinations in August 2007, June 2008, September 2011, and April 2015 to assess the current severity of his service-connected PTSD, at which time he was interviewed by examiners who also reviewed the pertinent medical history and performed examinations. During clinical interviews the Veteran endorsed symptoms including problems with concentration and memory, as well as trouble getting along with people he did not know. All of the VA examiners reported the Veteran’s PTSD resulted in symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Treatment records are not in significant conflict with findings during VA examination. Taken as a whole, the Veteran’s symptoms do not suggest he was unable to obtain and maintain employment. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does not consider this level of impairment as one that would preclude employment. The Board considered the Veteran’s lay statements that his right shoulder disability and PTSD made it difficult to work, specifically when performing repetitive tasks with his arms or working with people he did not know. The Board acknowledges his physical and mental limitations made it difficult to work. However, after review of the evidence of record the Board finds that the Veteran’s functional limitations did not preclude employment. The Board finds it very probative that, throughout, the record reflects the Veteran’s strong desire to work and his perception of himself as a hard worker. The Veteran was generally employed in jobs that allowed him to work fairly independently and to rest his shoulder occasionally. When the Veteran was not working, it was due to the nature of union jobs rather than due to his own limitations. Overall, the Veteran was qualified through education and experience for a wide variety of positions, many of which would not require strenuous and repetitive physical activity with his shoulder or working closely with others. He was more than qualified for such positions given his level of education and his work history. This type of work would also produce income above the poverty threshold. Based on all the evidence, the Board finds that 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 during his lifetime. The Board recognizes that the Veteran’s disabilities did have a significant impact on his life and made work more difficult, but the assigned disability ratings adequately compensated him for this level of impairment. As the evidence does not suggest that the Veteran was unable to maintain a substantially gainful occupation, a TDIU is not warranted. M. C. WILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.