Citation Nr: 21031569 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 09-31 807 DATE: May 24, 2021 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis prior to November 12, 2014 is denied. FINDING OF FACT The evidence of record is against a finding as to whether the Veteran's service-connected disabilities preclude him from securing substantially gainful employment prior to November 12, 2014. CONCLUSION OF LAW The criteria for assignment of a TDIU on an extraschedular basis prior to November 12, 2014 have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.16(b), 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2004 to August 2008. The claim was most recently before the Board in November 2020 when it was remanded for further development. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). A TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), they still may receive a TDIU on an extraschedular basis if it is determined that they are unable to secure or follow a substantially gainful occupation by reason of their service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363. Prior to November 12, 2014, the schedular criteria for TDIU are not met. The Veteran's combined rating was 60 percent from August 2008, 80 percent from January 20090 and 60 percent from September 2014. 38 C.F.R. § 4.16(a). Prior to November 12, 2014, the Veteran's service-connected disabilities included posttraumatic stress disorder (PTSD), evaluated as 10 percent disabling from August 2008, 50 percent from January 2009 and noncompensable from September 2014. His other service-connected disabilities included left and right shoulder instability, separately rated as 20 percent disabling; left and right knee chondromalacia, 10 percent each; tinnitus, 10 percent; and status post left tibia, noncompensable. Pursuant to an August 2019 remand, the claim was submitted to the Director of the Compensation and Pension Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001); Wages v. McDonald, 27 Vet. App. 233 (2015). In a September 2020 opinion, the Director denied entitlement to TDIU on an extraschedular basis. The initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses 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. 58 (2019). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages, 27 Vet. App. 233, Ray, 31 Vet. App. at 66. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 (b) includes two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray, 31 Vet. App. at 58. As sedentary is defined as doing or requiring much sitting the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1123 (2003). Pursuant to the November 2020 Board remand, the Veteran was provided a VA Form 21-8940, as the previously submitted form was not fully completed and advised that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). See December 2020 correspondence. The Veteran did not submit a new form or otherwise respond to the letter. Therefore, the Board must evaluate the evidence in the record. On the earlier VA Form 21-8940 submitted in December 2013, the Veteran indicated he last worked full time in 2012 and that his PTSD and shoulder disabilities prevented him from securing gainful employment. The Veteran did not list any previous employers within the last five years and indicated he had completed 3 years of college. In May 2008, the Veteran was seen for his bilateral knee, shoulder, and tinnitus disabilities. His shoulder disabilities were measured as having moderate impact on the Veteran at the time in a reduced range of motion and normal use of the shoulders. The Veteran's knees were found to be normal and had no pathology to render a diagnosis by the examiner at the time, though noted the Veteran reported pain so bad that he does not run and "never could get a profile." A December 2009 VA examination was conducted to assess the Veteran's adjustment disorder. The Veteran reported that he had been previously employed as a welder for seven months and a truck driver for three months but was let go for missing too much work. The examiner noted that the Veteran reported getting along well with his supervisors and coworkers as a truck driver. The examiner opined that the Veteran's symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. The examiner noted the Veteran is generally functioning satisfactorily with routine behavior, self-care, and normal conversation. Three months later, the Veteran presented for a February 2010 VA examination to assess PTSD. The Veteran noted that he was recently hired to be a shop foreman but was let go after a few days and was not informed as to why. The Veteran noted that he was trying to "get back into school" and reported he was unmotivated to do anything else but play video games due to his anxiety. The examiner opined that while the Veteran had difficulty maintaining a job, his symptoms would only cause occupational and social impairment with reduced reliability and productivity. In November 2014, the Veteran presented for a VA examination to assess his PTSD. The Veteran reported that he had held a variety of jobs since his separation from the military. The examiner noted the Veteran was not specific about his current occupation, but that he had recently refinished a bathtub and was performing remodeling work on a home. The Veteran stated that he had not applied for jobs because he feels he would not be able to make it to work on time and subsequently lose his job. The examiner noted that while the Veteran's PTSD would impact his ability to perform work, it did not appear to be at a level so severe as to render the Veteran unemployable. At a November 2014 VA examination for the Veteran's shoulder disabilities, the examiner noted that the Veteran would not be able to perform sustained overhead work with or without rotational aspects for sustained periods as the Veteran noted that his shoulders would be bothered when doing overhead work on a repetitive basis. The Board concludes that, prior to November 12, 2014, the Veteran was not unemployable as a result of his service-connected disabilities. Considering his education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers, the Board finds this level of impairment would not preclude employment prior to November 12, 2014. The Board acknowledges the Veteran's physical and mental limitations would make it difficult to work. However, by the evidence in the record, the Veteran appeared qualified through education and experience for a wide variety of positions, many of which would not require strenuous physical activity or frequent contact with others. Based on all the evidence, the Board finds that the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Thus, an extraschedular TDIU prior to November 12, 2014 is not warranted. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.