Citation Nr: 21026335 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 09-19 869 DATE: April 30, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1967 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018, April 2020, and November 2020 whereupon it was remanded to allow for further development, to include obtaining outstanding employment records. VA has since made requests to the Social Security Administration (SSA) and a state Fish and Wildlife Resources to obtain the Veteran’s records. SSA responded stating that there were no medical records found associated with the Veteran’s SSA file. VA made two requests to the state Department of Fish and Wildlife Resources but did not receive any response to date. Thus, the Board finds that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The matter now returns to the Board for adjudication. TDIU Criteria 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a 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). In exceptional circumstances, where the Veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). 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 or keep employment. The ultimate question, however, 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, 363 (1993). Notably, the question of employability is ultimately a legal one, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). 1. Entitlement to a TDIU The Veteran contends that he was unemployable due to his service-connected disabilities. Specifically, the Veteran contends that his service-connected disabilities rendered him totally unable to obtain and maintain employment, so as to warrant a grant of TDIU, from the start of the appeal period. The Veteran is currently service-connected for status post right knee total replacement rated as 10 percent disabling prior to December 7, 2017 and 30 percent thereafter; low back osteoarthritis rated at 10 percent disabling; left knee osteoarthritis at 10 percent disabling; right knee limitation of extension at zero percent disabling and a right knee scar at zero percent disabling. The Veteran’s combined rating was 30 percent prior to April 10, 2007 and 50 percent thereafter. The Veteran therefore does not meet the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). The Board has also considered whether a referral to Director of Compensation for consideration of extra-schedular evaluation is warranted under 38 C.F.R. § 4.16(b). Such a referral follows along the same analysis as regular schedular TDIU, with the difference that the Board cannot grant extraschedular TDIU in the first instance, and rather must refer to the Director of Compensation for such consideration. Thus, the Board shall review the evidence to determine whether the Veteran’s service-connected disabilities rendered him unable to gain or maintain employment, thereby warranting a referral to the Director of Compensation for extraschedular consideration. In an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) submitted in May 2019, the Veteran reported that he had worked as law enforcement officer from 1984 to 1988. He also reported that he had earned a GED and that he had attended the police academy. The Board notes that the Veteran reported working at a law enforcement agency from 1969 to 1988, when he retired early, at an April 2017 VA examination. In regard to the nature of his past employment, the Veteran has reported that he would often work extra hours at his job in order to build up leave time so he could take days off to rest and recuperate his lower back. The Veteran also reported difficulty in bending over, stooping, walking for exercise, and mowing the lawn. The Veteran also reported being unable to perform physical labor jobs that required standing, walking for long periods, stooping, or kneeling. However, the record indicates that the Veteran separated voluntarily from this employment and did so in 1988, decades before the period on appeal. The record isn’t clear if the Veteran has even sought employment since that time. In the instant matter, the record does not show the Veteran’s service-connected disabilities render him unable to gain or maintain gainful employment. With regards to his status post right total knee replacement, left knee osteoarthritis and right knee limitation of extension, the record shows that the Veteran’s functional impairments included muscle weakness, pain and instability. A November 2007 VA examination found the Veteran’s functional limitations to be an inability to stand for more than 20 minutes, an inability to walk more than a half mile at the most and requiring the frequent use of a cane to aid in walking. Private treatment notes from 2008 indicate that the Veteran’s bilateral knee pain interferes with activities of daily living but does not describe what these activities are or how there is interference. An April 2009 VA examination noted that the Veteran had a limp and that he could not stand for more than 30 minutes and could not walk more than 100 yards. A June 2019 VA examiner found that the Veteran is able to lift, carry, push and pull twenty pounds with some difficulties due to the back and knee conditions and also found that the Veteran is able to sit, stand, walk short distances and perform light exertional activities. No functional impairments related to his surgical scar. An April 2017 VA examination described it as well-healed and barely visible. With regards to his low back osteoarthritis, the record shows that the Veteran’s functional impairments included muscle weakness, pain and instability. An April 2009 VA examination noted that there was lumbar spine pain, decreased motion, stiffness and weakness. A June 2019 VA examination found that the Veteran was able to sit, stand, walk short distances and perform light exertional activities and that he is able to lift, carry, push and pull twenty pounds with some difficulties due to the back and knee conditions. The June 2019 VA examiner found that the Veteran was able to operate foot pedals, bend squat, stoop, crouch, kneel, crawl, balance, climb, twist, reach or turn intermittently with difficulties due to the back and knee conditions. The record does show the Veteran’s persistent symptoms and functional impairments such as pain, inability to walk for longer distances, inability to stand for longer periods of time, and an inability to exert himself excessively; however these are precisely the sort of symptoms contemplated under the Veteran’s currently assigned ratings. Pain and inability to walk or stand for long can inhibit an individual’s ability to work. However, the record does not support an inability to obtain and maintain gainful employment. The June 2019 VA examiner performed a detailed examination for functional impairments and determined that the Veteran was able to able to lift, carry, push and pull twenty pounds with some difficulties due to the back and knee conditions, sit, stand, walk short distances and perform light exertional activities. Additionally, to restate the above point, the Veteran’s symptoms are already contemplated by the currently assigned ratings, which are specifically intended to compensate for symptoms such as pain and inability to walk or stand. The Board has considered the favorable private opinion, by Dr. S.M., which opines that the Veteran is unable to hold any gainful employment at this point because of the discomfort and limited physical abilities from his lower extremities and his back. However, this opinion does not appear to be predicated on a thorough reading of the Veteran’s record. The opinion does not specifically address the nature of the Veteran’s employment, the types of tasks he would be specifically prohibited from performing or his functional impairments. The physician opines that the Veteran’s lower back pain contributes to his unemployability, but then defers conducting an examination because he “is not a spinal specialist.” Although the Board takes this opinion into consideration, for the reasons listed here, the Board accords it less probative value than the VA medical examinations of record, which the Board finds highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion is therefore afforded limited probative weight. The Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is competent to describe his symptoms and his difficulties in his past employment, as these are readily observable incidences. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the criteria needed to support a finding of TDIU involves, in part, medical findings that are within the province and purview of trained medical professionals (along with an ultimate legal determination by a VA adjudicator). See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran’s lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a TDIU. Rather, the competent and probative medical evidence of record all denies a finding of total preclusion from employment, albeit finding some level of impairment, but not a complete preclusion from gaining and maintaining employment. There is interference with employment certainly, but such interference is already contemplated by the currently assigned ratings. The Board acknowledges that the Veteran's post-service employment history appears to be limited to law enforcement and that his service connected disabilities may impact his ability to walk long distances and lift heavy objects. However, the June 2019 VA examiner found that the Veteran was found to be able to sit, stand, walk short distances and perform light exertional activities and that he was able lift, carry, push and pull twenty pound with some difficulties due to his back and knee conditions. The June 2019 VA examiner found that the Veteran was operate foot pedals, bend, squat, stoop, crouch, kneel, crawl, balance, climb, twist, reach or turn intermittently with difficulties due to his back and knee conditions and that was able to drive a specially equipped vehicle and travel but with difficulties due to the back and knees. While the examiner also noted that the Veteran had impairment to his hand and eye coordination, cognitive skills, concentration, vision and hearing abilities, there is no indication or allegation that such impairments are the result of a service connected disability. Furthermore, the record establishes that the Veteran is able to perform light exertional and most physical activities and hence capable of obtaining and maintaining gainful employment. Finally, the Board notes the arguments of the Veteran’s representative that the Veteran should be scheduled for another examination that would possibly reveal findings meriting higher ratings for his service-connected disabilities, and thereby qualify him for schedular TDIU. However, the Veteran does not have any pending increased rating claims and the record is contains adequate information regarding the Veteran’s functional impairments. Moreover, the Veteran’s representative has not alleged that the record is incomplete or that the VA examinations were inadequate. As such, the Board finds that an additional VA examiner’s opinion is not required in the present case. (Continued on the next page)   In sum, while VA examiners observed limitations that affect the Veteran's ability to walk long distances or stand for extended periods of time, there is simply no credible evidence to support a finding that the Veteran's service-connected disabilities, alone or in combination, are of sufficient severity to produce unemployability. Therefore, based on the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for a TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, Associate 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.