Citation Nr: 21027517 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 06-35 366 DATE: May 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to August 1978 and from December 1979 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before and remanded by the Board for additional development in April 2010, March 2012, and October 2017. Upon consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU) Total disability ratings for compensation (also referred to as total disability ratings based on individual unemployability due to service-connected disabilities (TDIU)) may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19. A threshold requirement for eligibility for TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Here, during the period on appeal, the Veteran's service-connected disabilities and ratings therefor are as follows: (1) scapulothoracic syndrome is rated as 10 percent disabling prior to March 10, 2012, and 20 percent thereafter; (2) arthritis and degenerative disk disease of the cervical spine is rated as 10 percent disabling; (3) arthritis and degenerative disk disease of the thoracic spine is rated as 10 percent disabling; (4) status post fracture, left little finger, is rated as 0 percent disabling (i.e., noncompensable); and (5) tinea manus, left hand, is also rated as 0 percent disabling. His combined evaluation during the period on appeal is 30 percent prior to March 10, 2012 and 40 percent thereafter. Thus, the Veteran does not meet the rating requirements for a TDIU. However, TDIU is warranted whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16(b), but the Board is precluded from awarding a TDIU under 38 C.F.R. § 4.16(b) without referring the matter to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the issue before the Board is whether a remand for referral for extraschedular consideration for TDIU is warranted. The initial extraschedular referral decision under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. at 66. Here, the Veteran claims that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities, most notably his scapulothoracic syndrome. His wife, sister, brother, and mother have each submitted statements wherein they each reported that the Veteran has been unable to obtain or secure gainful employment due to his service-connected disabilities and resultant limited use of his back and severe pain. They also indicated therein that the Veteran's service-connected disabilities, resultant pain, and resultant inability to obtain and maintain employment have caused the Veteran to be depressed and to have substance abuse problems, which have also further contributed to his inability to obtain and maintain gainful employment. The Veteran's wife stated that he has complained constantly that his left shoulder socket or scapula makes a very painful and loud snapping noise. The Veteran has contended in his own statements that his service-connected left scapula scapulothoracic syndrome causes a snapping and grinding sensation in the area of his left shoulder and severe pain (a 9.5 on a 1-10 scale), which he takes medication for, and which prevents him from performing "really strenuous work." He claims that employers opt not to hire him when he discloses that he has his service-connected disabilities. The Veteran has been afforded multiple VA examinations for his service-connected disabilities during the period on appeal, including in February 2004, December 2008, September 2010, and March 2017. Those VA examinations indicate that during the period on appeal, the Veteran's status post fracture, left little finger, has manifested, at worst, by intermittent swelling lasting up to three weeks as often as twice per year and causes no functional limitation. The Veteran's VA treatment records nor his lay statements evidence any other significant symptomatology or functional impairment attributable to this disability. The VA examinations indicate that the Veteran's tinea manus, left hand, has manifested, at worst, by exudation, itching, shedding, and crusting lasting up to four months and occurring as often as twice per year, and has caused functional impairment that has been described, at worst, as an inability to submerge his hand in any liquids when the aforementioned symptoms are present. The VA examinations indicate that the Veteran's scapulothoracic syndrome, arthritis and degenerative disk disease of the cervical spine, and arthritis and degenerative disk disease of the thoracic spine have manifested, at worst, by pain and limitation of motion of the respective body parts. An February 2004 examination report notes that the Veteran's arthritis and degenerative disk disease of the thoracic spine has resulted in losing work two times per week but did not further indicate the frequency or duration. The examiner further noted the Veteran had not been employed since 2001 and that the Veteran has limiting activities that required rotating/moving the shoulder/scapula, turning, laterally flexing the head, lifting object, or bending/turning the back. A September 2010 VA examiner noted the Veteran should be employable in any job that does not require repetitive overhead activities. The Veteran's medical records and lay statements once again do not reflect any other significant symptoms or functional limitations, other than, arguably, the snapping and grinding that the Veteran reports in association with his scapulothoracic syndrome. Furthermore, the Board also notes that the record (including the Veteran's application for TDIU, his VA treatment and vocational rehabilitation records) reflects that the Veteran successfully completed a Transitional Work Experience (TWE) Work for Pay Program from November 2011 to April 2012. The Veteran has completed high school as well as a course of training in automotive technology, obtaining substantially gainful employment in January 2014 as a maintenance mechanic and maintained that employment through at least August 2014, utilizing VA's vocational rehabilitation benefits. His application for TDIU reflects that he worked full time from September 2003 to November 2005 and from December 2005 to June 2006, 16-40 hours per week from February 2009 to November 2009, and 32-39 hours per week from February 2010 until at least August 2010 As discussed in the VA examination reports and reflected by his medical records, the functional limitation imposed by the Veteran's service-connected disabilities are limited to the Veteran's inability to do much reaching or lifting overhead, other heavy lifting, or frequent bending over or neck turning. However, there is not sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities; in fact, the Veteran appears employed throughout various portions of the appeal period. For example, the Veteran worked as a patient escort while participating in VA's TWE Work for Pay Program, and there is no indication that he is unable to obtain and maintain similar, less physically strenuous employment that does not involve heavy lifting or lifting overhead now. A November 2018 VA primary care treatment note indicates the Veteran reported directly from night work. A February 2019 VA nursing clinic visit treatment note reflects the Veteran works nights and set a goal of walking 30 minutes every day to stay physically active. While the Board does not wish to minimize the nature and severity of the Veteran's service-connected disabilities, the above evidence does not demonstrate a reasonable possibility that the Veteran is unemployable by reason of his service-connected. Accordingly, the procedures for referring this matter for extraschedular consideration are not met, and referral for extraschedular TDIU consideration is not warranted at this time. (Continued on the next page) For the foregoing reasons, the preponderance of the evidence is against entitlement to a TDIU. The benefit of the doubt doctrine is therefore not for application in this instance, and the claim for a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.340. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.