Citation Nr: 21027710 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-30 904 DATE: May 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 25, 2012 is denied. FINDING OF FACT The Board finds that the pertinent and more probative evidence of the record does not demonstrate that the Veteran's service connected disabilities alone were of sufficient severity to render him unable to secure and maintain substantially gainful employment, prior to October 25, 2012. CONCLUSION OF LAW The criteria for a TDIU prior to October 25, 2012 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.1, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty service from June 1967 to November 1969. The Veteran testified before the undersigned at a Board hearing in September 2013. A transcript is on file. The Veteran appealed the July 2018 Board's decision to the United States Court of Appeals for Veterans Claims (CAVC or Court) as to the instant issue. In an October 2019 Order, CAVC issued a Joint Motion for Remand (JMR). The parties to the JMR determined that the Board erred when it failed to consider all the factors pertaining to the term "unable to secure and follow substantially gainful employment". Specifically, the Court held that the Board's decision did not fully address the Veteran's potentially applicable non-economic components. In May 2020, the Board remanded these issues for additional development. The Board finds that there was substantial compliance with the remand directives on appeal as discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the period on appeal, in a February 2021 rating decision, the Veteran was granted a TDIU and assigned an effective date of October 25, 2012. This represents a partial grant of the benefits for the issue on appeal. Nothing herein shall disturb the assigned total rating. TDIU The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a 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). This cannot be awarded by the Board in the first instance, but only considered after a preliminary referral to the Director of the Compensation service. 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 not be given to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.34, 4.16, 4.19. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Substantially gainful employment is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Entitlement to a TDIU prior to October 25, 2012 The Veteran contends that prior to October 25, 2012, his serviced connected disabilities alone are of sufficient severity to render him unable to secure and maintain substantially gainful employment, prior to October 25, 2012. More specifically, the Veteran contends that since 2004, his service connected disordered rendered him unable to secure and maintain gainful employment. Prior to October 25, 2012, the Veteran was service connected for the following disorders: residuals, fracture, compound comminuted left tibia and fibula with artery involvement at 40 percent; residual, injury to scrotum and right thigh at 10 percent; right hip strain at 10 percent; right hip limited flexion at 0 percent; diabetes mellitus type II at 10 percent. The Veteran's overall combined rating prior to October 25, 2012 is 60 percent. These ratings were effective July 2011, prior to that a combined 50 percent rating had been assigned since March 2003. As the Veteran does not have a single service connected disability ratable at least at 60 percent or more prior to October 25, 2012, and there are not sufficient additional service connected disabilities to bring the combined rating to 70 percent, he does not meet the schedular requirements for consideration of individual unemployability prior to October 25, 2012. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Thus, the Board will consider whether a referral for extra-schedular consideration is warranted. In an August 1971 VA examination, the examiner diagnosed the Veteran with a fracture of the left femur with residual shortening of two inches. Fullness and residual swelling of the lower left extremity was noted. Full weight-bearing on the right leg revealed that the Veteran's left leg heel hovered two inches off the ground. A circulatory evaluation of the left lower extremity was diagnosed as maintained and in good condition with normal findings. The examiner noted no compromised peripheral circulation. Due to the shortening of the lower left extremity which led to functional loss, the Veteran was recommended for amputation below the left knee. In an August 1971 VA examination, the Veteran's scar of his scrotum was diagnosed as well healed. In an August 1971 VA examination, the examiner noted that the Veteran's right hip reveal good posture with free movement in all directions. The examiner also noted no restrictions or pain with localized tenderness or soreness. In a May 2003 VA Bone examination, the Veteran reported that he currently worked part-time at his family owned golf course. Prior to that, the Veteran reported that he worked in construction as a carpenter from 1974 to 1980. The Veteran also reported that he had to quit his construction carpenter job due to his back pain and left leg swelling. Tenderness and pain on palpitation of the left knee was noted as negative. A slight antalgic gait was noted. The examiner diagnosed the Veteran with left leg tibia comminuted fracture adequately healed. The examiner noted that the Veteran wears a left knee orthopedic lift. In a May 2003 VA peripheral nerves examination, the examiner diagnosed the Veteran with left lower extremity paresthesias from the distant left lower leg. In a May 2003 VA scar examination, the examiner diagnosed the Veteran with a left scrotal scar 2 1/2 cm in length. The examiner noted that the scars are mobile and non-tender. The examiner also noted that the Veteran's scrotal scar does not limit his activities. In a May 2004 private treatment examination, the examiner noted normal range of motion of the right hip. The examiner also noted a slight shortening of the left leg of approximately 1 cm The examiner noted residual neuropathy with weakness of his lower left extremity that impacts his gait. In a December 2009 VA TDIU examination, the Veteran reported that he has a history of borderline diabetes, but no prescribed insulin or oral medication. The Veteran reported that his sugar levels were under control with an A1C of 6.2. During the examination, the examiner noted that the Veteran had been receiving SSA disability benefits for the past five years due to his non-service connected cervical stenosis and degenerative disc disease. In a December 2009 VA TDIU examination, the examiner noted that the Veteran has a left sole build-up of approximately 3 inches to account for the shortening because of trauma and bone loss surgeries that were done. The examiner also noted that the Veteran reported no residual constitutional symptoms of bone disease as pertaining to his left tibia and fibula. Concerning functional and occupational limitations, the Veteran reported working part time at his family owned golf course as a ground's keeper. The Veteran also reported a history of construction work as a carpenter from 1974 to 1980. An examination revealed that the Veteran's left leg is 3.5 inches shorter than his right. Left knee flexion was noted at 90 degrees with very mild crepitus with radiological findings of degenerative joint disease of the left knee. During the examination, the examiner noted that the Veteran had been receiving SSA disability benefits for the past five years due to his non-service connected cervical stenosis and degenerative disc disease. In a December 2009 VA TDIU examination, the examiner noted a left scrotal scar 2.5 cm in length. The examiner noted that the Veteran's scars do not present any functional limitations. During the examination, the examiner noted that the Veteran had been receiving SSA disability benefits for the past five years due to his non-service connected cervical stenosis and degenerative disc disease. In a December 2011 VA hip and thigh conditions examination, the examiner diagnosed bilateral hips osteopenia and a right hip strain. Regarding functional and occupational limitations, the examiner noted that the Veteran's right hip disorder impacts his ability to work. The examiner explained that the Veteran's right hip disorder precludes physically laborious job functions. Although the Veteran claims that his service-connected disabilities prevent his employment prior to October 25, 2012, a December 2009 VA examiner indicated that his non-service connected cervical stenosis and degenerative disc disease had been the primary impediment to his continued employment. The Board reviewed findings from the Social Security Administration (SSA) that considered the Veteran disabled for his cervical stenosis and degenerative joint disease. Importantly, the Board emphasizes that it is not bound by SSA disability findings when considering VA benefits, including entitlement to a TDIU. Further, as noted, this pathology is not service connected. The Board also notes the Veteran's TDIU form submitted October 2009. The Veteran reported on the form that he was employed full-time as a golf course grounds keeper from 1991 to 2004 . The Veteran also reported that he became too disabled to work in 2004. The Board finds that while the Veteran's service connected disabilities render him unable to perform certain types of labor; nonetheless, the evidence of record does not show he is rendered unable to physically or mentally secure or follow substantially gainful employment as a result of his service-connected disabilities prior to October 25, 2012. As indicated in the record, the Veteran has a year of college education, he has a lengthy full-time work history as a construction carpenter from 1974 to 1980 and as a ground's keeper until 2004. Overall, the record indicates that the Veteran's post-service work experience is such that the impairment caused by his service-connected disabilities would not prevent him from securing and following substantially gainful employment for the time in question. Moreover, there is no evidence in the record to support a finding that the Veteran's service connected disorders symptoms are manifested by total occupational impairment. As the records shows, the Veteran's scrotum scarring disorder is well healed and does not present any functional or occupational limitations. Furthermore, although the Veteran's left leg and right hip present some functional and occupational limitations which preclude the Veteran from physically laborious job functions, there is no indication that the Veteran cannot perform light sedentary work of a non-laborious nature. Moreover, there is no indication in the record that the Veteran's diabetes presents any functional and occupational limitation prior to October 25, 2012. Lastly, as indicated by the December 2009 examiner, the Veteran's non-service connected cervical stenosis and degenerative disc disease are primarily responsible for his receipt of disability benefits. After a review of the record, the Board has determined that the Veteran's employment impairment for this time is due to factors other than his service-connected disorders such as his non-service connected cervical stenosis and degenerative disc disease. The Board also reviewed and carefully considered the Veteran's lay statements asserting that the severity of his service connected disorders warrants TDIU prior to October 25, 2012. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to TDIU as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lastly, the Board has determined that nothing suggests symptoms outside the norm for rating the service connected disorders during the entire period on appeal. Moreover, the evidence of record does not reveal that prior to October 25, 2012 he presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization due to his service connected disorder so as to render impractical the application of extra-schedular consideration for his service connected disabilities. Although the Veteran has been rendered unable to obtain or maintain substantially gainful employment this is primarily due to his non-service connected cervical stenosis and degenerative disc disease. After a full review of the record, the Board finds that the evidence is against the Veteran's claim for TDIU prior to October 25, 2012. As discussed above, the pertinent evidence of record does not demonstrate that the Veteran's service connected disabilities, alone, are of sufficient severity to render him unable to secure or follow substantially gainful employment at any time during this appeal period. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harris, Michael E. 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.