Citation Nr: 21025934 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 10-39 868 DATE: April 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 16, 2020, is denied. FINDING OF FACT Prior to June 16, 2020, the evidence does not demonstrate that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to June 16, 2020, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from April 1986 to April 1989. The Veteran’s claims were remanded by the Board in March 2014, May 2017, and May 2019. The matter again is before the Board. Since the time of the last Board remand, in a February 2021 rating decision the RO granted entitlement to TDIU from June 16, 2020. As this is a complete grant of the appeal for that time period, the matter has been limited to the time period prior to June 16, 2020. As the claim was not granted for the entire period on appeal, the claim for the period prior to June 16, 2020, remains in appellate status. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Entitlement to TDIU prior to June 16, 2020 It is the established policy of VA 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. A finding of total disability is appropriate “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)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more 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). Where these percentage requirements are not met, entitlement to benefits 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, and consideration is given to the Veteran’s background, including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For the applicable appellate time period prior to June 16, 2020, the Veteran’s service-connected disabilities include degenerative disc disease of the lumbar spine, rated as 20 percent disabling from December 16, 2009 to July 8, 2013, and as 40 percent disabling from July 8, 2013; tinnitus, rated as 10 percent disabling; and a bilateral hearing loss disability, rated as noncompensably disabling. The Veteran’s combined disability rating was 30 percent prior to July 8, 2013, and 50 percent from July 8, 2013 to June 16, 2020. Thus, the Veteran does not meet the schedular criteria for TDIU at any time on appeal. As such, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 1. For a Veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; 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 v. Brown, 4 Vet. App. 361 (1993). The Board finds no evidence of record suggesting that the Veteran’s case is outside the norm requiring extraschedular consideration. An October 2009 VA treatment record stated that the Veteran had been unemployed for 2 years and that the urologist had not released him to return to work following prostate surgery 6 months previously. In January 2010, the Veteran indicated that he had been unemployed for 2 years and wanted help finding a job. He did not have a driver’s license and felt depressed. He drank a 6 pack of beer on the weekends and had a couple of drinks with his buddies. In April 2011, a Social Security Administration (SSA) Administrative Law Judge (ALJ) reviewed records presented to her agency and found the Veteran eligible for SSA disability benefits because of lumbar spine disorder and diabetes. The ALJ cited a report by Dr. M.D. in which he found that the Veteran was limited in standing and walking but could perform at a sedentary exertion level. The ALJ also cited the report of psychologist Dr. T.S. for her opinion that the Veteran’s could perform only unskilled tasks. The Veteran was afforded a VA spine examination in October 2012. The Veteran reported constant back pain that was rated as 5 out of 10 and flared up to 7 to 9 out of 10. On examination, thoracolumbar range of motion showed forward flexion to 70 degrees, with pain throughout the arc of motion; extension to 10 degrees, with pain throughout motion, right and left lateral flexion to 20 degrees, with pain onset at 20 degrees, and right and left lateral rotation to 30 degrees or more with pain onset throughout motion. There was no further motion lost with repetitive motion testing. Lower extremity muscle strength was normal and there was no muscle atrophy. Reflexes were hypoactive in the lower extremities, but sensation was normal. There was functional impairment in that the Veteran had retired in 2008 from his custodian job because of the pain produced using a scrubber or a mop. In October 2013, the Veteran stated that he had not worked for the past 3 years and had prior experience as a custodian and helicopter mechanic. An October 2014 VA examination report for the service-connected back disability is of record. The Veteran reported that he was unable to work and had been working as a janitor, but could no longer use a mop or broom. The Veteran stated that he was unable to do any work requiring him to be on his feet for long periods or use his back extensively. The Veteran had forward flexion of the thoracolumbar spine to 20 degrees of forward flexion, 5 degrees of extension, and 10 degrees of right and left lateral flexion and rotation with pain onset at the endpoint of motion. Lower extremity muscle strength was 4 out of 5 and there was no muscle atrophy. Reflexes were hypoactive in the lower extremities. The Veteran made constant use of a cane and occasional use of a wheelchair, primarily for outings. Following examination, the examiner concluded that while the Veteran “cannot do any job requiring physicality he would be suitable for desk, phone, or other sedentary employment.” The Veteran was afforded a VA spine examination in November 2015. The examiner noted that the Veteran had driven himself to the examination. The Veteran had worked as a janitor for 2 years before retiring in 2007 and previously had worked as a custodian at a different institution. The Veteran had experienced constant pain for 2 to 3 years that he rated as 4 out of 10 and had been using a cane for the past 3 to 4 years. The Veteran reported that he could walk for 30 to 50 feet, was unable to run, could stand for 15 to 20 minutes, could sit for 1 hour, and was unsure about his ability to ascend and descend stairs. The Veteran was independent in most activities of daily living, but would have difficulty standing for extended periods to prepare food or vacuum and was unable to mop. He could do laundry, with difficulty, as he could sit and fold clothes. On examination, the Veteran had normal lower extremity muscle strength, no muscle atrophy, and hypoactive reflexes. A February 2016 VA medical opinion stated, “Patient reported on exam that he worked as a c[]ustodian and janitor before he stopped working in 2007 stating he retired in 2007. The job of a janitor or c[]ustodian is a physically demanding job. With his current issues with back pain and daily flare he will not be able to function as a c[]ustodian or janitor. [Patient] unable to perform any activity that requires repetitive movement of the spine / heavy lifting / turning / twisting which will result in a flare. It is less likely than not (less than 50% probability) that his service connected lumbar spine disability alone render[s] him unable to secure or follow substantially gainful occupation as long as the occupation involves sedentary work involving simple task in a relax[ed] environment.” In March 2017, the Veteran was involved in a car accident while driving for Uber. He stated, “I’m disabled and picked it (driving Uber) up as a hobby and I enjoyed it, meeting people. I was [part time], then 3-4 days per week.” In November 2017, the Veteran was working providing janitorial services. In December 2017, the Veteran stated that he had gotten off work at 6am that day. A January 2019 memorandum, VA’s Director, Compensation Service discussed how VA examination reports in October 2014, November 2015, and February 2016 included the conclusion that the Veteran’s back pain and daily flare ups precluded him from functioning as a custodian or janitor. The memo stated that the examiners did note that the Veteran would be able to work in sedentary employment for short periods of time in a relaxed environment with frequent breaks. The memorandum concluded, Based on the totality of the evidence of record, extra-schedular entitlement to TDIU is not shown due exclusively to lumbar degenerative disc disease, tinnitus or hearing loss nor was there [] any collective impact shown or that the rating schedule found to be inadequate (3.321). The evidence shows that the Veteran’s lumbar degenerative disc disease makes occupational activity difficult, not impossible. While physical occupational activity is shown to prevent a janitor job, the record does not show the Veteran to be unemployable under any circumstances. The test of whether a person is unable to pursue substantially gainful employment is whether a job is realistically within the physical and mental capabilities of the claimant under Van Hoose v. Brown and as a result there is no evidence of unemployability under any circumstances. The evidence only shows that he may be limited in performing duties associated with a certain position without showing convincingly that his ability to work in other suitable positions is entirely compromised by service-connected disabilities pursuant to Brown v. Brown. There are several non-service-connected disabilities identified, which have not been differentiated from service-connected conditions (Cathell v. Brown). Therefore, since no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran’s unemployability (Blackburn v. Brown). Requirements for a TDIU pursuant to 38 C.F.R. § 4.16(b) have not been met making extra-schedular consideration unwarranted. In January 2019 and July 2019, the Veteran indicated that he had been staying active with “lots of driving” for Uber and as an Uber Eats driver. He also often walked with friends at the airport. In July 2019, the Veteran also stated that he was going to Planet Fitness 3 times per week. During multiple treatment visits and most recently in March 2020 the Veteran reported that he was retired. In September 2020, the Veteran indicated that he was stressed out due to being out of work due to Covid. In a December 2020 VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, the Veteran stated that after having brain surgery or a tumor removed from his pituitary gland he had tried working as a pharmacy technician, but could not stand for extended periods of time due to his back issues. Thus, the Veteran has worked during the appellate time period. There is no lay or medical evidence to suggest that the Veteran’s service-connected hearing loss and/or tinnitus disabilities impact his ability to work. For the period prior to June 16, 2020, some evidence suggests that the Veteran’s service-connected back disability would prevent him from working in his previously held janitor or custodial job positions. The November 2015 VA spine examination, however, suggested that he could sit for an hour at a time and could perform activities such as folding laundry while seated. He reported that he was able to perform janitorial service in 2017 and that he was a successful Uber driver. Thus, the Veteran could work in an environment that allowed the Veteran to primarily sit, but with the ability to change positions on an hourly basis and perform light duty activities while seated. There is nothing to indicate that the Veteran could not answer phone calls, despite his hearing loss and tinnitus disabilities, or as a greeter or cashier at a retail store. The foregoing are just examples of the type of positions that he performed and do not appear to be precluded by his service-connected disabilities for the period prior to June 16, 2020. The Board acknowledges that the Veteran’s service-connected disability has some effect on his occupational impairment prior to June 16, 2020. However, the 30 and 50 percent schedular ratings recognize the industrial or commercial impairment resulting from his disabilities. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment prior to June 16, 2020. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.