Citation Nr: 21030233 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-34 995 DATE: May 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's combined service-connected schedular rating for her musculoskeletal system was 60 percent from September 14, 2010. 2. The Veteran's service-connected disabilities have not shown to preclude her from securing or following a substantially gainful occupation consistent with her education and occupational background. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from April 1984 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran submitted a Notice of Disagreement (NOD) in December 2014 and a Statement of the Case (SOC) was issued in June 2016. The Veteran perfected an appeal by submitting a timely VA Form 9 in July 2016. The issue was previously before the Board, in November 2018 and in April 2020. In April 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain VA Medical Center treatment records from October 2017 and to refer the issue of entitlement to TDIU to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The AOJ obtained and associated VA Medical Center treatment records from October 2017 and referred the issue of entitlement to TDIU to the Director of Compensation Service. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in July 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). Regardless, 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 1) the veteran's history, education, skill, and training; 2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, considering factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain 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). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that her service-connected disabilities render her unable to obtain and maintain gainful employment. Specifically, the Veteran contends that her physical disabilities affected her mentally, and her representative contends that the Veteran's ability to work out at the gym does not indicate that she is able to obtain and maintain gainful employment. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a TDIU, to include on an extraschedular basis. A review of the record indicates that the Veteran is in receipt of a combined 60 percent rating effective September 14, 2010. Specifically, she is in receipt of a 40 percent rating for her back disability, 10 percent rating for her bilateral pes planus, two separate 10 percent ratings for her left knee, 10 percent for her right leg, and two non-compensable ratings for residuals of a left fifth metatarsal fracture and left leg. In other words, throughout the period on appeal, the Veteran has been rated at least 60 percent combined for musculoskeletal disabilities; for purposes of TDIU, these are a single disability affecting the musculoskeletal system. See 38 C.F.R. § 4.16(a) ("For the above purpose of one 60 percent disability ... the following will be considered as one disability: ... (3) disabilities affecting a single body system"). Therefore, the Veteran meets the schedular requirements for consideration for TDIU. In May 2010, the Veteran reported that she was in a motor vehicle accident in May 1995, nearly a decade after discharge. VA Medical Center treatment records attribute her neck injury and wrist pain, which are not service connected, to her motor vehicle accident. In October 2010, the Veteran reported that she was offered a job at Navy Public Works Center as a fire alarm dispatcher but she did not take the job as she was worried about "hearing calls and having to sit long periods." In June 2013, the Veteran submitted a claim of entitlement to TDIU. At the time of the claim, the Veteran was in receipt of a combined 60 percent for her musculoskeletal disabilities, effective September 2010. The Veteran stated that she worked as an electrician's assistant at the Navy Public Works Center in Hawaii until 1998. She reported that her left knee and back disabilities prevented her from working. In December 2013, the Veteran was afforded a VA examination for her knee and she reported that she was unable to squat, bend, kneel, or climb stairs during flare-ups that occur 1-2 times a year with stair climbing and last a "couple of weeks." She also reported that while she was able to sit for an unlimited time, she was unable to perform her job as a librarian assistant as she was unable to bend, kneel, or squat. Similarly, in February 2014, the Veteran reported that she had pain on prolonged walking or standing although no abnormalities were demonstrated during her ankle and feet examination. In April 2014, the Veteran reported that she was awarded full disability by the Social Security Administration ("SSA") since May 1988 and that the award based on her Honolulu medical, psychological, VA vocational records, and her education. A May 1990 decision from the Department of Health and Human Services found that the medical evidence established the Veteran to have "severe learning disabilities, reactive depression, low back pain due to lumbar disc disease, bilateral foot pain due to flat feet, residual left knee pain due to history of chondromalacia and chondroplasty." The May 1990 decision also noted that the Veteran had the "residual functional capacity to perform the exertional and non-exertional requirements of work except for walking and standing more than 6 hours in an eight-hour day, lifting more than 20 pounds, 10 pounds frequently, work requiring the ability to concentrate for more than three hours in an eight-hour day, work requiring the ability to understand oral instructions, and work requiring more than minimal contact with others including oral communication." In an October 2014 rating decision, the AOJ found that the Veteran was receiving disability benefits for an organic mental disorder with cognitive deficits. In a December 2014 NOD, the Veteran contended that the VA examiner misjudged the pain caused by the Veteran's disabilities. In February 2015, the Veteran contended that she was "disabled fully under the 'low back' disability" and that her pain medication did not work. She also contended that she was mentally fatigued due to her back pain. In April 2016, during a VA examination for her back, the Veteran reported that she could not work in a job that required riding in a truck, sitting on a bench chair, sitting longer than 15 minutes and having to stand, lifting over 15 pounds, or squatting. In December 2017, the Veteran reported that she did not have difficulties in basic activities or instrumental activities of daily living, such as moving around indoors, transportation, or performing housework. The registered nurse commented that she did not experience a flare-up of a recurrent or chronic health problem in the last 7 days. In April 2018, the Veteran reported that she enjoyed going to the gym with her mother. In June 2018, the Veteran reported that she was still going to the gym doing full body exercises, using the elliptical machine, and lifting weights. She reported that she will primarily be doing home workouts as she needed to take care of her mother at home. Treatment records from April 2019 show the Veteran being able to perform similar levels of physical activities, working out at "UFC and 24 HR Fitness" while taking care of her mother. The Veteran reported that she also managed rental units for her mother. In November 2019, the Veteran reported that she did yard work almost daily and that she went to the gym once a week. In March 2020, the Veteran reported doing a 20 minute weight workout at a gym using "about six machines" before the gym closed for the day. In April 2020, the Director of Compensation Services ("Director") opined that the Veteran's service connected disabilities in either single or combined form did not prevent her from obtaining and maintaining gainful employment. In reaching this conclusion, the Director observed that the Veteran worked for her father prior to service answering phones, as an electronic technician during service, and as an electrician assistant after discharge. The Director also cited the April 2016 VA examination and found that the Veteran's disability did not show unusual or exceptional disability pattern demonstrating that the application of the regular rating criteria would be impractical. The Board also finds that, when limiting the consideration to the effects of the Veteran's service-connected disabilities, the evidence does not demonstrate that the Veteran's service-connected disabilities prevent substantially gainful employment. As discussed at length above, the Veteran's service-connected musculoskeletal disabilities did not prevent her from performing aerobic or anaerobic workouts, lifting weights and using the elliptical machine regularly despite disabilities in her back, knees, and feet. In addition, the Veteran was offered a position based on her skill and experience in October 2010, nearly a month after she was granted a combined disability rating of 60 percent. Most significantly in this case, the Veteran reported multiple times to her VA physicians that she worked for her mother managing rental properties. This information is in direct contradiction to her claims for TDIU, which do not report this work. Because the Veteran has not provided the Board with any information concerning this employment, the Board cannot determine whether this is more than marginal employment. However, when considering the Veteran's demonstrated activity level, coupled with the information that she does work in a managerial position for her family rental home business, the Board cannot find that her service-connected disabilities prevent substantially gainful employment. Furthermore, the VA examinations conducted during the appeal period, while demonstrating that the Veteran cannot stand for a very prolonged period of time, 8 hours, and must take breaks every few hours, does not show such severe functional impairment so as to prevent substantially gainful employment. It is also well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered. Caluza v. Brown, 7 Vet. App. 498, 511-12, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Despite the Veteran's reports of being unable to squat, climb stairs, lift, and otherwise not being able to sit or stand for 15 minutes, she has also consistently reported working out regularly for over 20 minutes using weights and other machines. While the Board recognizes the limitations the Veteran faces due to her service-connected disabilities, these limitations were considered in the disability ratings she receives for those disabilities. Again, the assignment of the schedular ratings is recognition of the functional limitations caused by her disabilities, and those ratings contemplate the severity and overall impact the symptoms have on her life. However, despite these limitations, the Board finds that the most probative evidence shows that the Veteran is not unable to secure or maintain substantially gainful employment due solely to her service-connected disabilities. In sum, the Board finds that the totality of the evidence demonstrates that the Veteran was not unable to obtain and retain substantially gainful employment, based solely on service-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is against the claim of TDIU, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. Therefore, the appeal is denied. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun 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.