Citation Nr: 21024393 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-10 636 DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The probative evidence shows that the Veteran’s service-connected disabilities alone do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1990 to May 1991, with additional periods of service in the Army National Guard (ARNG). This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in March 2012. The Veteran testified before the undersigned Veterans Law Judge at an October 2016 hearing; a transcript of the hearing is of record. In a November 2018 decision, the Board granted a higher 40 percent rating for service-connected generalized arthralgia and muscle pain due to undiagnosed illness, and remanded the issue of entitlement to a TDIU as it was inextricably intertwined with a pending appeal for service connection for a psychiatric disorder. In a March 2019 rating decision, the AOJ effectuated the Board decision, and granted a 40 percent rating for generalized arthralgia and muscle pain due to undiagnosed illness effective September 18, 2001. The case was subsequently returned to the Board. (The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in a separate Board decision.) 1. Entitlement to a TDIU The Veteran contends that he is unable to work due to service-connected disabilities. In an October 2011 statement, he said he had not worked for four years due to hip and ankle pain. He said he had difficulty sitting down and standing up, it was painful to bend over, his knees were starting to go out, and it was painful to walk for long distances. In October 2014, he contended that Gulf War Syndrome prevented him from working, and his disability began on January 2010. At the October 2016 Board hearing, he stated that he last worked in 2008, as an electrician, and stopped working because he had joint and muscle pain. In an August 2017 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran did not identify the disabilities that prevented him from securing or following any substantially gainful occupation. He said he was an inpatient at a domiciliary, his disability affected full-time employment in October 2010, and he last worked full-time in October 2010. His prior employment included working as a laborer on a full-time basis from April 2004 to April 2008. He reported that he completed two years of college and had no additional education or training before he was too disabled to work. By a letter to the Veteran in August 2017, the AOJ requested additional information from the Veteran as to his TDIU claim, specifically an address for his former employer, and for him to identify the disability that is preventing him from working. The Veteran did not respond. The Board notes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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, 4 Vet. App. at 363. 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). The United States Court of Appeals for Veterans Claims (Court) recently defined “substantially gainful employment,” holding that there is both an economic and a noneconomic component; the economic component means “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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Whether a service-connected disability or disabilities renders a Veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). During the rating period on appeal, the Veteran’s established service-connected disabilities include generalized arthralgia and muscle pain (rated 40 percent disabling), and tinnitus (rated 10 percent disabling from May 18, 2016) with a combined disability rating of 40 percent prior to May 18, 2016, and 50 percent from that date. Throughout the rating period on appeal, the threshold schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) are not met, as the Veteran’s combined service-connected disability rating is less than 70 percent. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321 (b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of VA’s Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). VA treatment records primarily reflect extensive treatment for non-service-connected disabilities, primarily substance abuse/dependence and psychiatric disorders, as well as arthritis and degenerative disc disease of the spine, and arthritis of multiple joints. See June 2009 VA examination and December 2009 addendum diagnosing age-related degenerative joint disease of the lumbosacral spine and early degenerative joint disease of the right hip with chronic low back pain and right hip area pain. A July 2000 VA psychiatry note reflects that the Veteran reported that a long history of attention-deficit hyperactivity disorder (ADHD) prevented him from maintaining employment. A September 2001 Vet Center intake assessment reflects that the Veteran complained of an inability to focus and concentrate and an inability to hold a job, and said he was depressed. He reported that he had lost over 100 jobs since 1993, and said he had never been able to hold a job for more than a few months before his attention deficit and inability to remember instructions resulted in him being fired. VA domiciliary treatment notes dated in December 2003 reflect that the Veteran was admitted for treatment of substance abuse. He reported 14 years of education and six months of technical training. His longest full-time job was for approximately seven years. His usual occupation was carpenter, which the examiner assessed as skilled manual labor. He worked in marine construction for approximately five years while living in Florida, and then worked in carpentry and home building, and as a roofer. It was noted that he had chronic low back pain since 1996 when he fell off a roof, and had a long history of substance abuse. The Veteran was interested in assessing employment fields, and said that working as a carpenter was very boring for him. In the past three years, his usual employment pattern was unemployed. In the past 30 days, he was paid for working for 15 days. He had a history of obtaining multiple jobs, but chronic substance abuse interfered with him keeping them. He was admitted to the domiciliary for housing and treatment of substance abuse (methamphetamine, cocaine, and marijuana). He reported that he majored in theology in college for three years and now considered himself a humanist/paganist. He previously planned to become a pastor, but his classes changed his views and he decided to abandon this plan. A May 2009 VA examination reflects that the Veteran reported that he worked as an electrician for many years, but was unemployed. He planned to start a new full-time job the following month through a county work force initiative. On June 2009 VA joints examination, the Veteran reported that he worked as an electrician for the past five years, and previously worked as a carpenter for 15 years. He was laid off recently, but would start a new job as an electrician within a few days. He reported a history of low back pain for 15 years. He stated he was able to accomplish all activities that were required as an electrician, but with aches and pains. In his job, he had to be in awkward positions, kneel, climb ladders, and stand and walk quite a bit. In an October 2010 VA psychological examination, the examiner indicated that the Veteran had not worked in years, and was totally disabled and unemployable on the basis of his bipolar disorder alone. In September 2011 the Veteran reported that he used to be a landscaper but was unable to work due to leg and back pain. On VA examination in November 2011, the examiner diagnosed chronic hip and back pain related to degenerative disc disease and probable ankylosing spondylitis rendered him mostly sedentary due to pain, and incapable of manual labor. The examiner opined that manual labor and age were the likely causes of his arthralgias and myalgias. In October 2012, a VA examiner opined that the Veteran's non-service-connected obesity and chronic pain affected his ability to be employed. In July 2013, a VA psychologist diagnosed personality disorder not otherwise specified (NOS) and cannabis dependence, and opined that he was completely psychologically capable of obtaining and maintaining substantially gainful employment should he choose to do so. VA examiners have opined that the Veteran's service-connected tinnitus impacts the ordinary conditions of daily life, including his ability to work. See VA examinations in June 2016 and January 2018. The Veteran reported that he had constant bilateral high-pitched tinnitus, which was distracting, but he could still hear people when they talk. He said it was bothersome, but he was used to it. On VA joints examination in February 2018, the examiner diagnosed arthralgia and myalgia, as well as obesity, inhalant dependence, alcohol dependence, stimulant dependence (methamphetamine in early remission), cocaine dependence, schizoaffective disorder, and depression. X-ray studies showed degenerative changes in the spine, hips, right knee, and ankle, and he had a right hip prosthesis. A magnetic resonance imaging (MRI) showed multi-level degenerative disc disease of the lumbar spine. The examiner opined that the Veteran's muscle injuries did not impact his or her ability to work, such as resulting in inability to keep up with work requirements due to muscle injuries. The examiner opined that the current severity of his service-connected muscle pain and arthralgia, each evaluated at 10 percent, was unchanged. The Social Security Administration (SSA) determined that the Veteran became disabled in July 2016 due to a primary diagnosis of affective disorders, and a secondary diagnosis of osteoarthrosis and allied disorders. In June 2014, the SSA determined that he had the following severe impairments: lumbar radiculopathy, right hip degenerative joint disease, osteoarthritis of the hips, and obesity. On psychiatric evaluation in October 2016, Dr. P. diagnosed schizoaffective disorder, bipolar type, provisional, borderline personality disorder, polysubstance dependence including methamphetamine, cocaine, marijuana, with a six-month remission by report, and chronic pain. The examiner opined that he had well-documented chronic severe recurrent mental illness with a poor prognosis. Although the Veteran’s testimony suggests that he stopped working primarily due to his service-connected disabilities, the Board finds that his assertions are not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board finds that the preponderance of the evidence does not show that the Veteran’s service-connected disabilities alone have rendered him unable to secure or follow a substantially gainful occupation throughout the rating period on appeal, and that his non-service-connected disabilities produce the majority of his occupational impairment, particularly his non-service-connected polysubstance dependence, psychiatric disorders, and age-related degenerative joint disease and degenerative disc disease. The evidence shows that the Veteran has completed two years of college, and had extensive work experience as a carpenter, laborer, roofer, and electrician. The medical opinions regarding the functional effects of the Veteran’s service-connected disabilities are highly probative, and weigh against the claim. The Board concludes that the findings during treatment and examination to be more probative than the lay statements by the Veteran regarding the effect of his service-connected disabilities on his occupational functioning. The Veteran does not meet the schedular criteria for a TDIU, and a TDIU under 38 C.F.R. § 4.16 (a) is denied. In light of the foregoing evidence, which does not show that the Veteran is unemployable as a result of his service-connected disabilities, the Board finds that extraschedular referral under 38 C.F.R. § 4.16 (b) is not warranted during that period. Therefore, the Board finds that the probative evidence of record does not demonstrate that the Veteran’s service-connected disabilities alone are to a degree that they rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience, throughout the rating period on appeal. The claim for entitlement to a TDIU is denied. (Continued on the next page)   In reaching the conclusions above, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.