Citation Nr: 21024882 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 08-04 647 DATE: April 26, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied on schedular and extraschedular bases. FINDING OF FACT From August 18, 2009 to April 1, 2013, the evidence of record does not show that the Veteran was unable to secure or follow substantially gainful employment as a result of service-connected disabilities and the evidence of record fails to reveal that exceptional circumstances existed at other periods of time which would warrant extraschedular consideration. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1971 to July 1991, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Previously, the claim was before the Board in October 2020 and was remanded for additional development. The Board finds the prior remand directives have been substantially complied with the matter is are again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU The Veteran asserts that his service-connected disabilities have rendered him unable to obtain and maintain gainful employment. As a preliminary matter, the RO requested that the Veteran submit an updated VA Form 21-8940 in November 2020 as VA received the Veteran’s last VA Form 21-8940 in September 2010. A review of the record shows that the Veteran has not submitted an updated VA Form 21-8940. Applicants for benefits, such as the Veteran, are obligated to cooperate and assist VA in developing evidence. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). Consequently, the Board proceeds with adjudication of this claim based upon the extant evidence of record and the Board will not again remand the matter for additional development. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 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). 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 his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. §§ 4.16 (a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340 (a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § § 4.16 (a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. § §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § § 4.16(b). As of the date of the Veteran’s latest rating decision (February 24, 2021), the Veteran was service connected for the following disabilities: 1) nephropathy at 30 percent, effective from April 1, 2013 and at 60 percent, effective from August 18, 2009; 2) diabetes mellitus type 2 (DM2) at 20 percent, effective from June 6, 2007; 3) left hip disorder at 10 percent, effective from August 8, 2005; 4) right hip disorder at 10 percent, effective from August 8, 2005; 5) residuals of left epididymectomy at a noncompensable disability rating, effective from February 11, 1993 and at 10 percent, effective from August 8, 2004; 6) residuals of right epididymectomy at a noncompensable disability rating, effective from February 11, 1993 and at 10 percent, effective from August 8, 2004; 7) unspecified depressive disorder at 10 percent, effective from August 12, 2019; and 8) residuals of right inguinal hernia at a noncompensable disability rating, effective from August 1, 1991. Consequently, the Veteran only met schedular requirements for entitlement to a TDIU from August 18, 2009 to April 1, 2013. However, even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Nevertheless, the Board will assess whether entitlement to a TDIU was warranted based upon exceptional circumstances for other periods, and if so whether referral for extraschedular consideration is warranted. The Veteran’s Social Security Administration (SSA) medical and adjudication records show that the Veteran received a fully favorable notice of decision in May 2009. These records disclose that the Veteran had not engaged in substantially “gainful activity” since October 15, 2005. And, these records reveal that the Veteran’s most severe impairment was pain disorder secondary to cystic mass status post operation. Other illnesses, injuries, and conditions included: 1) sharp pains during bends; 2) general weakness, tiredness, and increased anxiety from physical movement; 3) sleep apnea; 4) DM2; and 5) hypertension. Upon an August 2009 VA diabetes mellitus type II (DM2) examination, a clinician indicated that the Veteran’s DM2 appeared well-controlled on the medication Metformin. During this examination, the clinician reported that laboratory tests strongly suggested that the Veteran had nephropathy. Upon a May 2011 VA general examination, a clinician did not indicate that service-connected DM2, left hip disorder, right hip disorder, residuals of left epididymectomy, residuals of right epididymectomy, or residuals of right inguinal hernia impacted the Veteran’s ability to work. However, the clinician reported that the Veteran’s service-connected residuals of left epididymectomy functionally impacted occupational activities to the extent that the Veteran experienced pain lifting and carrying. During this examination, the clinician noted that the Veteran had worked as an administrative clerk before leaving on disability in 2005. Upon a December 2011 DM2 examination, a clinician reported that the severity of DM2 did not functionally impact the Veteran’s ability to work. Upon a VA kidney examination of the same date, a clinician noted that nephropathy did not require regular dialysis and did not functionally impact the Veteran’s ability to work. The evidence shows that the Veteran completed his high school degree and two years of college. Additionally, the Veteran completed specialized professional training in the fields of air traffic control; radar operations; medical transcription; and commercial driving. After 16 years of professional experience in the United States Air Force as a radar technician, the Veteran worked as a public-school bus driver and in the field of medical treatment intake and reception. The Veteran also prior working experience as a clerk at a VA medical center prior to going on disability. While the Veteran asserts that his service-connected disabilities rendered him unable to obtain or retain employment consistent with his education and professional experiences from August 18, 2009 to April 1, 2013, the evidence of record shows that the Veteran has a high school education, two years of college, much specialized training, and a host of professional experiences, to include work in the fields of air traffic control, radar operations, medical transcription, medical intake and reception, and professional driving. Collectively, the Board finds that this combination of education and work experiences, from August 18, 2009 to April 1, 2013, were more-than-sufficient for the Veteran to obtain and maintain substantial employment considering his specific education and specific work experiences in several professions. See Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board recognizes that from August 18, 2009 to April 1, 2013, the Veteran experienced pain lifting and carrying. However, this limitation did not rise to the level of rendering the Veteran totally impaired physically, occupationally, or socially. Indeed, the evidence of record does not reveal that any one of his service-connected disabilities, or the entirety of his service-connected disabilities, precluded him from obtaining and maintaining gainful employment from August 18, 2009 to April 1, 2013. From August 18, 2009 to April 1, 2013, the Veteran’s job skills would have lent themselves to employment in a host of positions that did not require painful lifting and carrying. Certainly, administrative work in air control, medical transcription, and other supporting desk positions in air control and medical records would have been viable and reasonable work options for the Veteran. Here, the Board notes that many employers from August 18, 2009 to April 1, 2013 offered accommodations under the ADA and a multiple of state labor statutes, to allow for downtime due to disabilities. In the Veteran’s case, it would have been feasible for an employer to “tweak” a job description to exclude duties of lifting and carrying (specific to the Veteran’s needs), so as to prevent pain. As already noted, the Veteran did not meet the schedular requirements for entitlement to a TDIU at any other periods of time. And, the evidence of record fails to reveal that exceptional circumstances existed at other periods of time which would warrant consideration under 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, a TDIU on a schedular basis from August 18, 2009 to April 1, 2013 and a TDIU on an extraschedular at all time periods before and after this delineated time frame must be denied. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.