Citation Nr: 21026011 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-15 529A DATE: April 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected lumbar spine degenerative arthritis and intervertebral disc syndrome (IVDS), rated 20 percent prior to December 1, 2019, 10 percent from that date to December 9, 2020, and 40 percent from that date; right knee degenerative joint disease (DJD) status post arthroscopic surgery, rated 10 percent prior to January 11, 2021, and 30 percent from that date; right shoulder bicipital tendonitis with rotator cuff tear and ostearthritis status post repair, rated 20 percent; right lower extremity sciatic nerve radiculopathy, rated 0 percent prior to April 23, 2018, 10 percent from that date to December 9, 2020, and 20 percent from that date; left lower extremity sciatic nerve radiculopathy, rated 10 percent from September 30, 2015 to December 9, 2020, and 20 percent from that date; left patella status post fracture with scar, rated 10 percent; right knee instability, rated 10 percent; and erectile dysfunction (ED), right shoulder and right knee scars, each rated 0 percent, all (other than ED) involve the musculoskeletal system (and for purposes of a TDIU rating are considered a single disability, when combined); they are not shown to be of such nature and severity as to render him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met from April 23, 2018; referral for consideration of an extraschedular TDIU rating prior to that date is not warranted, and a TDIU rating is not warranted at any time. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1976 to February 1980. This matter is before the Board on appeal from a January 2010 rating decision. In March 2019, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. In April 2019 and September 2020, the matter was remanded for additional development. Entitlement to a TDIU is denied. On August 2009 VA knee examination, the Veteran reported joint pain, stiffness, swelling, decreased speed of joint motion, pain on descending and climbing stairs, bilateral instability, and right knee enlargement. He reported he was able to stand for up to one hour and unable to walk for more than a few yards, and he constantly used a brace. He reported he was employed full time as a mail processing equipment mechanic for the U.S. Postal Service, and that he lost less than 1 week from work in the previous 12-month period due to his knee disabilities. The examiner opined that the bilateral knee disability had significant effects on the Veteran’s usual occupation due to pain resulting in limited standing, walking, and bending. On September 2012 VA orthopedic consult, the Veteran reported that persistent aching pain, locking in both knees, and a feeling of instability, especially on stairs, had limited his activities in recent years. He reported that he was unable to work due to knee pain. On physical examination, his gait was normal, alignment of both knees was normal, and both knees had full range of motion without pain. On February 2016 VA back examination, the Veteran was noted to have limited range of motion and inability to bend down to pick objects up from the floor. He did not use assistive devices. The examiner opined that the Veteran’s back condition impacts his ability to work in that he is unable to stand/walk for prolonged periods without pain and is unable to pick objects up from the floor without pain. In his April 2016 substantive appeal, the Veteran stated that he can no longer do the job that he was trained to do because he has difficulty walking and bending, and that he was fired from his job in 2010. On May 2018 VA shoulder examination, the Veteran reported inability to raise his arm above the shoulder and that he had pain on stretching the arm. He was noted to have slow hand movement and arm weakness due to a ruptured supraspinatus tendon. The examiner opined that the shoulder condition impacts the Veteran’s ability to perform occupational tasks including raising the arm above his head or doing any heavy lifting. On June 2018 VA examination, the Veteran reported that his knee pain intensity had increased over the previous 2 to 3 years. On physical examination, he had full range of motion of both knees. He was noted to have disturbance of locomotion, interference with sitting and standing, and sharp joint pain with squatting, kneeling, and prolonged standing. The examiner opined that the bilateral knee disability did not impact the Veteran’s ability to perform any type of occupational task. In his June 2018 application for TDIU, the Veteran indicated that he most recently worked as a technician for the U.S. Postal Service from 2002 to October 2010, when he became too disabled to work due to his service-connected lumbar strain, bilateral knee disability, radiculopathy of both legs, and right shoulder disability. He reported having a high school education with no additional education or training. Social Security Administration (SSA) records [received in August 2018] show that the Veteran was granted SSA disability benefits beginning in September 2010 due to a primary diagnosis of other unspecified arthropathies and a secondary diagnosis of hearing loss. On August 2018 VA back examination, the Veteran reported that he had not been to a doctor for back pain in years, and had had no injections, surgeries, or medication [for the back]. He was noted to have mild bilateral radiculopathy. The examiner opined that the back condition impacts his ability to work in that he is limited in prolonged standing, ambulation, bending, and twisting. The examiner opined that the Veteran has a level of capability that includes riding his bike without issue, which makes it evident that he has dexterity, balance, and core stability. The examiner noted that the Veteran has relatively normal range of motion and strength, but pain is exhibited that would restrict him from lifting heavier objects from the ground, and therefore light work is likely necessary for his employability. At the March 2019 Board hearing, the Veteran testified that it was predominantly his knees that made it so he could no longer work. He worked as an electronic technician, working on the automated equipment in big postal facilities, which required much walking, standing, climbing, and “getting down under”; his duties wore on him to the point that he began to take time off due to swollen knees. He testified that he was forced out of his job at the post office before he could consider taking a disability retirement. He testified that he could do a sedentary job but would have to retrain for a different kind of work than he has done before. He testified that he has not sought vocational rehabilitation at VA. On November 2019 VA shoulder examination, the Veteran was noted to have undergone rotator cuff repair and biceps tenotomy surgery two months earlier. He was noted to have decreased range of motion, unable to fully flex or abduct the arm; he had overall weakness of the right shoulder due to post-operative status. The examiner opined that due to the right shoulder condition the Veteran was unable to complete tasks that require pushing, pulling, lifting, or full range of shoulder motion. On December 2019 VA knees examination, the Veteran reported flare-ups of knee symptoms including tingling/burning and popping with any kind of activity, especially walking. On physical examination, he had full range of motion of both knees. Pain was noted on extension bilaterally but did not result in or cause functional loss. He reported regular use of a right knee brace. The examiner opined that the bilateral knee disability did not impact the Veteran’s ability to perform any type of occupational task. A July 2020 response to a request for employment information from the U.S. Postal Service indicates that the Veteran was employed from June 2002 to June 2011 as an electronic technician, last worked in October 2010, and his employment was terminated for violation of a Last Change Agreement. On December 2020 VA back examination, the Veteran was noted to have moderate sciatic radiculopathy bilaterally. The examiner opined that the back condition impacts his ability to work because he has constant low back pain that increases in severity after 15 minutes of walking/standing or with any bending and lifting. On February 2021 VA shoulder examination, the Veteran reported that the right shoulder had improved since the September 2019 surgery; he reported fatigue and aching with prolonged use of the right arm. The examiner opined that the right shoulder condition impacts his ability to perform occupational tasks due to limitation in overhead pressing and reaching. On March 2021 VA knees examination, the Veteran reported that his work as an electronic technician involved much standing and squatting, which he was no longer able to perform by 2011. He reported current inability to squat and occasional falls due to right knee instability. The examiner opined that the Veteran’s knee conditions impact his ability to perform occupational tasks because he experiences right knee pain and weakness with ambulation more than 50 feet. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system, e.g. orthopedic, will be considered as one disability. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s nonservice- connected disabilities on his ability to function. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran’s service-connected disabilities include: lumbar spine degenerative arthritis and IVDS, rated 20 percent prior to December 1, 2019, 10 percent from that date to December 9, 2020, and 40 percent from that date; right knee DJD status post arthroscopic surgery, rated 10 percent prior to January 11, 2021, and 30 percent from that date; right shoulder bicipital tendonitis with rotator cuff tear and ostearthritis status post repair, rated 20 percent; right lower extremity sciatic nerve radiculopathy, rated 0 percent prior to April 23, 2018, 10 percent from that date to December 9, 2020, and 20 percent from that date; left lower extremity sciatic nerve radiculopathy, rated 10 percent from September 30, 2015 to December 9, 2020, and 20 percent from that date; left patella status post fracture with scar, rated 10 percent; right knee instability, rated 10 percent; and ED, right shoulder and right knee scars, each rated 0 percent. The combined disability rating is 40 percent from June 17, 2009 to September 30, 2015; 50 percent from September 30, 2015 to April 23, 2018; 70 percent from April 23, 2018 to September 20, 2019; 100 percent from September 20, 2019 to April 1, 2020; 60 percent from April 1, 2020 to December 9, 2020; 80 percent from December 9, 2020 to January 11, 2021; and 90 percent from January 11, 2021. Because all of the service-connected disabilities (other than ED, which is rated 0 percent) affect a single body system (orthopedic issues with neurological manifestations), for which the combined rating is 60 percent or higher from April 23, 2018, the schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) is met from that date. The analysis next turns to whether the service-connected disabilities have rendered the Veteran unemployable. The Veteran has not worked full time for any extended period during the period for consideration. However, this of itself does not establish that his service-connected disabilities rendered him unemployable. Although VA examiners have opined that the Veteran’s lumbar spine, right shoulder, bilateral knee, and bilateral lower extremity radiculopathy disabilities impact on employability due to physical limitations, none has opined that his service-connected disabilities render him unemployable. The examiners have largely opined that the lumbar spine, right shoulder, bilateral knee, and radiculopathy disabilities impact on ability to engage in strenuous physically demanding labor or work that requires prolonged standing or walking. It is also shown that he would be unable to engage in employment that would require, bending, stooping, or lifting (an August 2018 examiner opined that pain would restrict him from lifting heavier objects from the ground, and that light work is likely necessary for his employability). Furthermore, more recent evidence suggests that his shoulder disability would preclude work that requires overhear reaching or pressing. Thus, the overall disability picture presented by the Veteran’s service-connected disabilities shows that he would likely be precluded from engaging in work in an occupation that is physically demanding, requires prolonger walking or standing, requires bending or lifting, or requires overhead reaching or pressing. However, while the limitations due to the Veteran’s service-connected disabilities may reduce his employment opportunities, they are not shown to be such as to preclude all forms of substantially gainful employment. For example, it is not shown that due to his service-connected disabilities he would be unable to engage in work that can be done sitting (and does not require bending, heavy lifting, or overhead reaching or pressing), with opportunity to stand or move as required, that is consistent with his high school education and work experience. In fact, at the Board hearing he acknowledged that he would be capable of engaging in primarily seated employment (but indicated that that would require training, as he has no experience in types of employment that is done, primarily seated). There is no indication that the Veteran’s education, skills, and experience would not allow for him to be trained to enable participation in such types of employment as, for example, telephone sales or surveys, compiling data and reports, maintaining inventory control on a computer, etc., despite the physical limitations due to his service-connected disabilities, particularly as employers may make accommodations for physical impairment (and may be required to do so under the Americans with Disabilities Act). Under 38 C.F.R. § 4.16(b), TDIU may be assigned on an extraschedular basis to veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). (“It is the established policy of the Department of Veterans Affairs 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.” (emphasis added)). Regarding the period prior to April 23, 2018, the evidence does not support that the service-connected disabilities were of such nature and severity as to prevent his participation in regular substantially gainful employment, so as to warrant referral of the case to the VA Compensation Service Director for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b); 4.16(b). Applying the same analysis as above, unemployability due to the service-connected disabilities prior to April 23, 2018 is not shown, and referral of the claim to the Director of VA Compensation for consideration of an extraschedular TDIU rating prior to April 23, 2018 under 38 C.F.R. § 4.16(b) is not warranted. In summary, the overall record does not support that due to his service-connected disabilities, the Veteran was rendered unable to obtain and maintain substantially gainful employment consistent with his education and experience, at any time during the appeal period. The Board has considered the Veteran’s and his representative’s statements in support of the appeal, and acknowledges that due to his service connected disabilities he clearly has work limitations which limit his occupational opportunities, but is unable to find that due to the service-connected disabilities alone he is precluded from engaging in regular substantially gainful employment consistent with his education and work experience. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.