Citation Nr: 21030484 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-36 387 DATE: May 19, 2021 ORDER Prior to May 20, 2018, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to December 8, 2015, factors warranting a referral for TDIU on an extraschedular basis were not present. 2. For the period from December 8, 2015 to May 20, 2018, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Prior to May 20, 2018, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.16 (a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSION In June 2019, the Veteran was afforded a hearing before the undersigned. In February 2021, the Board remanded the issue on appeal for additional development. 1. TDIU prior to May 20, 2018. In February 2021, the Board remanded this claim, noting that during the course of this appeal, the Veteran had raised the issue of entitlement to a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Under the circumstances, the time period at issue begins with the filing of his claims for service connection for a back disability and a skin disability in September 2015. See 38 C.F.R. § 3.400. Total disability will be considered to exist when there is present any impairment of mind or body which 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 for compensation may be assigned, where the schedular rating is less than total, 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, the disability shall be ratable at 60 percent or more. If there are two or more such 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). "Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16 (a). During the relevant time period, service connection was in effect for: dysthymic disorder, evaluated as 30 percent disabling, obstructive sleep apnea, evaluated as 30 percent disabling as of January 24, 2018, thoracolumbar spine strain, evaluated as 10 percent disabling as of September 23, 2015 and 40 percent disabling as of March 1, 2017, allergic rhinitis with polyps, evaluated as 30 percent disabling as of January 24, 2018, cervical strain, evaluated as 20 percent disabling as of September 23, 2015, radiculopathy of the right upper extremity, evaluated as 20 percent disabling as of December 8, 2015, radiculopathy of the left upper extremity, evaluated as 20 percent disabling as of December 8, 2015, peripheral neuropathy of the right lower extremity, evaluated as 20 percent disabling as of September 7, 2016, tinnitus, evaluated as 10 percent disabling, right hip bursitis, evaluated as 10 percent disabling as of September 7, 2016, and right hip bursitis with loss of flexion, pseudofolliculitis barbae, and residual right knee scar, all evaluated as noncompensable. The Veteran's combined evaluation is 60 percent as of September 23, 2015, 70 percent as of December 8, 2015, 80 percent as of September 7, 2016, and 90 percent as of March 1, 2017. See March 2021 rating decision and associated code sheet. A combined 100 percent evaluation is in effect as of May 20, 2018. The TDIU issue is therefore moot as of May 20, 2018. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). In an Application for Increased Compensation Based on Unemployability (VA Form 21-8940), received in February 2021, the Veteran indicated, in relevant part, that between February 2015 and June 2019 he worked 40 hours per week in a warehouse. Prior to December 8, 2015. Prior to December 8, 2015, the Veteran is not shown to have met the schedular criteria for TDIU based upon two or more service-connected disabilities. 38 C.F.R. § 4.16 (a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. §§ 3.321, 4.16(b). 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. Therefore, rating boards should submit to the Director of the Compensation and Pension Service for consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards of 38 C.F.R. § 4.16 (a). 38 C.F.R. § 4.16 (b). Ordinarily, VA's Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16. While 38 C.F.R. § 3.321 (b)(1) requires marked interference with employment, 38 C.F.R. § 4.16 requires evidence of unemployability. Kellar v. Brown, 6 Vet. App. 157 (1994). Although the Board is precluded from initially assigning an extraschedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009). The relevant medical evidence pertaining to the Veteran's service-connected disabilities includes VA disability benefits questionnaires (DBQs), dated in November 2015, which show that the Veteran reported that he is a contractor for IT (internet technology) services at an Air Force base, and that he "works for a similar company as well." The examiners concluded that the Veteran's back, neck and skin disorders did not impact his ability to work, and that his depressive disorder was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Reports from VA's Vocational Rehabilitation and Employment Services (VR&E), dated between 2016 and 2017, show that in his (VA Form 28-1902w), signed in November 2016, the Veteran that he has worked full-time as a senior supply technician since January 2015. The evidence is insufficient to show the Veteran was unemployable due to service-connected disability, and it weighs against the argument that a referral for a TDIU pursuant to 38 C.F.R. § 4.16 (b) is warranted. The evidence indicates that the Veteran was employed during the entire time in issue. There is no competent evidence of record during the time period in issue to show that the Veteran was unemployable due to service-connected disability. The Board therefore finds that the Veteran does not meet the requirements for referral of a TDIU claim on an extra-schedular basis, and that referral for consideration of entitlement to TDIU on an extraschedular basis is not warranted. Prior to December 8, 2015, a TDIU is therefore denied. From December 8, 2015 to May 20, 2018. Because the Veteran's radiculopathy of the right upper extremity is a part of his cervical strain disease process, the separate ratings for these disabilities are combined for the purpose of determining whether the schedular rating criteria for TDIU are met. Here, they are, as the combined rating as of December 8, 2015 was 70 percent and the cervical strain and one of its complications (radiculopathy of the right upper extremity) combine to at least 40 percent as of that date. See 38 C.F.R. § 4.16 (a). Private treatment reports, dated in 2016, show treatment for low and mid-back pain and right hip pain. A December 2016 VA hip and thigh DBQ notes that the impact of the Veteran's right hip bursitis on his ability to work is "miss[ing] days of work due to hip pain." A December 2016 VA peripheral nerves DBQ notes that there was no impact from the Veteran's neuropathy of the right lower extremity on the Veteran's ability to work. A March 2017 back DBQ shows that the Veteran was noted to have lost up to one week of work time in the previous 12 months. The Veteran reported working in a warehouse, and noted that having to move boxes was painful. He was not able to stand, walk, or sit for a long period of time. Reports from VA's Vocational Rehabilitation and Employment Services (VR&E), dated between 2016 and 2017, show that in his (VA Form 28-1902w), signed in November 2016, the Veteran indicated that he has worked full-time as a senior supply technician from January 2015 to the present. The Veteran alleged that his current employment as senior supply technician and Union steward was unsuitable. He stated that he wanted to move out of, or up from, his current position. These reports note that the Veteran was previously determined not to be entitled to VR&E services, and not to have a handicap, on two other occasions. The Veteran was determined to not be entitled to VR&E services and not have an employment handicap. It was determined that the Veteran had overcome any employment handicap with employment. He was noted to have 10 years of experience in logistics, transferrable and marketable skills, and a stable work history. It was determined that the Veteran's disabilities do not impede his ability to obtain and/or maintain employment. Private treatment reports, dated in 2016, are associated with the VR&E records, which show treatment for low and mid-back pain and right hip pain. This medical evidence notes that the severity of the Veteran's symptoms interferes daily with household activities, routine daily activities, and work. A June 2017 VR&E letter states that the Veteran was disallowed from vocational benefits because he failed to report for his appointment, he did not cancel or call to reschedule, and he did not respond within ten days to a notification letter. A VA sinusitis DBQ, dated in April 2018, notes that the impact on the Veteran's allergic rhinitis with polyps on his ability to work is that during flare ups has difficulty with breathing during exertion. A VA sleep apnea DBQ, dated in June 2018, notes that the Veteran's symptoms do not impact his ability to work. In June 2020, the Veteran submitted a job description for senior supply technician. At that time the Veteran also submitted a leave report from his job covering the period from December 2015 to August 2016, and a statement from his supervisor. The supervisor stated that the Veteran was hired in January 2015, and that he has worked on the second or third shifts for most of that time in order to give him time during the day to attend medical and physical therapy appointments. The Board finds that the claim must be denied. In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes a claimant's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose, 4 Vet. App. 361 (1993). In this case, the Veteran worked full-time in a warehouse during the time period in issue. The VR&E records show that the Veteran was determined to not be entitled to services, that he was determined not have an employment handicap, and that he had overcome any employment handicap with employment. The Veteran was noted to have 10 years of experience in logistics, transferrable and marketable skills, and a stable work history. VR&E concluded that the Veteran's disabilities do not impede his ability to obtain and maintain employment. There is no competent opinion of record in favor of the claim. As such, the Board finds that the evidence of record is insufficient to show that the Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities during the period from December 8, 2015 to May 20, 2018. Therefore, the claim is denied. As noted in the Board's February 2021 remand, a VA unemployability statement is associated with the January 2020 back DBQ, which shows that it was determined that the Veteran was able to perform sedentary work (exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.) However, this evidence is dated about one year and seven months after the time period in issue, and it does not contain any basis upon which to find that it is relevant to the time period in issue. It has therefore been afforded no probative value. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran is competent to report on factual matters of which he has first-hand knowledge. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to identify a specific level of disability under the appropriate diagnostic codes, to include whether he meets the criteria for a TDIU. Accordingly, the preponderance of the evidence is against the Veteran's claim, and it is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.