Citation Nr: 21032350 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-44 467 DATE: May 26, 2021 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities are not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant referral of a TDIU on an extraschedular basis. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1992 to November 1993. The Board remanded these matters in November 2018, July 2019 and January 2020 for additional development. The Board is satisfied that there has been substantial compliance with the January 2020 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a total disability based upon individual unemployability (TDIU) Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2020). 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2020). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19 (2020). Even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2020). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is 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. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. Factual Background and Analysis The Veteran's service-connected disabilities are a left shoulder disability with a 30 percent rating; a right knee disability with a 10 percent rating; a left knee disability with a 10 percent rating and a scar from a right inguinal hernia repair with a 10 percent disability. The Veteran's combined disability rating is 50 percent effective May 29, 2015. Thus, he does not meet the schedular criteria for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran also has several disabilities that are not service connected. The Veteran was sent an application for TDIU (VA 21-8940) in June 2015 which was not returned. Social Security Administration (SSA) records indicate that the Veteran was a painter, welder and metal worker at a shipyard and last worked in July 2004. On the Veteran's SSA disability application he reported having a high school education and listed anxiety disorder, bad knee, hernia and penis disorder as disabilities that limited his ability to work. The Veteran reported that because of his anxiety he is unable to leave home and will throw up when he is away from home. The Veteran also reported that he has difficulty climbing, standing or walking without his cane and braces. The record also shows that the Veteran was notified in March 2020 that he was eligible for vocational rehabilitation benefits. A May 2016 VA examiner did not find that the Veteran's knee disabilities impacted his ability to function. An April 2019 VA examination report noted that the Veteran's left shoulder impacted his ability to work as he could not use his cane in his left hand which had been difficult for him to change. As a result, he occasionally forgets and uses his left hand with his cane which results in falls. As noted above, the Veteran does not have one service-connected disability rated at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, with one disability rated at 40 percent. As such, the criteria for a schedular TDIU under 38 C.F.R. § 4.16 (a) are not met. On review of the record, the Veteran was not unemployable by reason of his service-connected disabilities and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted. As noted, the April 2019 VA examiner indicated that the Veteran's service-connected left shoulder disability impacted his employment. However, the Board finds that the limitations noted by the VA examiner specifically address the physical limitations surrounding potential employment and these physical limitations alone again do not necessarily mean that the Veteran is not able to secure or follow a substantially gainful sedentary occupation. Additionally, the medical evidence does not contain an opinion that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment and the Veteran has not presented or identified any such existing medical evidence or opinion. The Board also notes that the Veteran has been awarded Social Security Administration (SSA) benefits. Although VA is required to consider the SSA's findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. Thus, SSA's determination has little probative value in this matter, and is not sufficient, in this case, to overcome the other evidence in the record. While the Board is sympathetic for the restrictions that encompassed these disabilities, the evidence clearly demonstrates that the Veteran's service-connected disabilities did not preclude all forms of employment. Again, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU and that referral for consideration of entitlement to TDIU on an extraschedular basis is not required. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.