Citation Nr: 21032587 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 10-38 826 DATE: May 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities on an extraschedular basis prior to October 15, 2018 is denied. Entitlement to a TDIU based on service-connected disabilities on an extraschedular basis from October 15, 2018 is granted. FINDINGS OF FACT 1. Prior to October 15, 2018, the Veteran's service-connected disabilities do not render him unable to secure and follow substantially gainful employment. 2. For the period from October 15, 2018, was rendered unable to obtain or maintain substantially gainful employment due to his service-connected disabilities when considering his education, special training, and employment history. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU on an extraschedular basis prior to October 15, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b). 2. The criteria for entitlement to a TDIU on an extraschedular basis from October 15, 2018 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1978 to January 1981. His claim comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 Department of Veterans Affairs (VA) rating decision. This case was previously remanded for further development in March 2017 and in November 2020, the Board remanded the issue of a TDIU for referral to the Director of Compensation Service for extraschedular consideration. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to a TDIU based on service-connected disabilities on an extraschedular basis The Veteran's claim for a TDIU was raised during the pendency of his appeal of increased rating claims for his service-connected right knee and right shoulder disabilities, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that his right knee and right shoulder conditions prevent him from securing and following a substantially gainful occupation. 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. 38 C.F.R. § 4.16. 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 (a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341 (a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran is service connected for a right shoulder strain (rated 20 percent disabling); tinnitus (rated 10 percent disabling); a right knee strain (rated 10 percent disabling; and a cervical spine disability (rated 10 percent disabling). The Veteran's combined disability rating is 40 percent from December 10, 2007. See 38 C.F.R. § 4.25, Combined Ratings Table. As such, the Veteran's disability evaluations do not meet the percentage requirements for entitlement to a TDIU on a schedular basis. In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. As noted above, the Board referred this claim to the Director of Compensation Service for extraschedular consideration in its November 2020 remand. In January 2021, the Director of Compensation Service evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b). The Director concluded that, for the relevant period, the Veteran was not found to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Director explained that the Veteran is shown to have last worked in 2007; and although the records show there is reduced ranges of motion and painful motion for both the right knee and right shoulder, and his hearing loss with tinnitus are reported to cause difficulty with communication the evidence does not indicate that the Veteran discontinued working, or was asked to discontinue working, due to the service-connected conditions. As no service-connected disabilities have been identified either individually or collectively as the sole reason for the Veteran's unemployability, the Director found that a TDIU is not warranted on an extraschedular basis. The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the question before the Board is whether the Veteran's service-connected disabilities precluded substantial gainful employment for which his education and occupational experience would have otherwise qualified him. In this regard, the Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. ii. Prior to October 15, 2018 Turning to the evidence of record, for the reasons discussed below, the Board finds that for the period prior to October 15, 2018, the evidence does not show that a TDIU on an extraschedular basis is warranted. On his application for a TDIU, the Veteran contended that he has been unable to secure and follow substantially gainful employment since he retired in 2007. In his statement, the Veteran described his right shoulder and right knee as the disabilities that primarily impacted his ability to work when he was employed though he did not indicate that he left his job due to disability. The record reflects that the Veteran last worked as a machine operator until June 2007. Further, the record shows that the Veteran graduated high school and attended college for two years, went to truck driving school and attended vocational school for carpentry. No other education or specialized training is noted. Although the Veteran is unemployed, the objective medical evidence of record fails to establish that he was precluded from employment due to service-connected disabilities prior to October 15, 2018. Evidence on record indicates no concessions were made for the Veteran due to age or disability during his career, and the Veteran lost no time due to disability in the year before he last worked. In December 2007, a VA treatment record notes that the Veteran's right knee condition would limit him to lifting less than 50 pounds and that he could not stoop or kneel for prolonged periods. Further, in a December 2007 statement, the Veteran reported that he is currently unemployed after being laid off. In October 2008, VA treatment records stated that the Veteran's knees could prevent the Veteran from doing manual labor but would not prevent him from performing a sedentary job. In June 2014, the Veteran reported that he was unable to work due to chronic back pain. During the period in question, the Veteran underwent VA examinations for his other service-connected disabilities, including bilateral hearing loss and tinnitus. However, the VA examiner found that these disabilities did not impact the Veteran's ability to work other than increased difficulty understanding others. The Veteran's VA treatment records for the relevant period were also reviewed. The Board notes that the Veteran's treating clinicians did not suggest he is unemployable at any time due to his service-connected disabilities. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation at any time during the relevant period. The Board acknowledges that the Veteran has been found totally disabled by the Social Security Administration (SSA), this was due in part to nonservice-connected disabilities. Moreover, the SSA's finding, while probative evidence, is not binding on the VA as the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (SSA administrative decisions and regulations are not binding on VA or the Board). In summary, the competent lay and medical evidence of record reflects some occupational limitations due to the Veteran's service-connected disabilities, but not an inability to secure and maintain substantially gainful employment consistent with the Veteran's education and occupational experience. While his hearing loss has made it more difficult to understand others, and his right knee and right shoulder conditions have been found to limit his ability to lift, climb, walk, or stand for prolonged periods of time, neither these impairments, nor the Veteran's other service-connected disabilities preclude the Veteran from functioning in a different type of work environment that is less noisy, or in a job that doesn't require prolonged periods of standing, climbing, walking or heavy lifting. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment for the period prior to October 15, 2018. Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected disabilities, either singly or combined, prevented him from securing or following any substantially gainful employment, the Board finds that entitlement to a TDIU on an extraschedular basis for the period prior to October 15, 2018 is not warranted. The Board therefore concludes that the criteria for a TDIU on an extraschedular basis have not been met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. ii. From October 15, 2018 As discussed below, the Board finds that resolving all reasonable doubt in favor of the Veteran, a TDIU on an extraschedular basis is warranted from October 15, 2018, the day it became factually ascertainable that he was unable to obtain or retain substantially gainful employment due to his service connected disabilities. At an October 15, 2018 VA examination for the Veteran's right knee, the examiner stated that the Veteran's knee conditions cause difficulty with standing, sitting, walking, making jobs that require those abilities, such as cashiering, painting, and construction difficult. During an October 2018 VA examination for the Veteran's right shoulder condition, the examiner stated that the Veteran's shoulder conditions cause difficulty lifting arm about head, making jobs that require those abilities, such as stocking, painting, difficult. In a January 2021 VA examination to assess the Veteran's right knee disability, the examiner stated that Veteran would be unable to grip tools effectively, reach up to work with tools, or climb ladders due to right shoulder strain. She also noted the Veteran has difficulty using a computer. In January 2021 VA examination assessing the Veteran's right shoulder condition, the VA examiner opined that the Veteran would be unable to complete standing, walking, bending, or climbing ladders due to his right knee strain. Furthermore, following the January 2021 examination, the VA examiner selected that the Veteran was not capable of sedentary work on an individual employability statement. Taking into consideration the totality of the evidence, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities preclude him from securing and following any substantially gainful employment from the October 2018 VA examination. It is at this time, the Veteran's service connected disabilities are first shown to impact his ability to sit, stand, and walk, all activities that would make most types of employment impossible to obtain or retain. Accordingly, the totality of the Veteran's service-connected disabilities indicate that the Veteran would be significantly impeded in most forms of workplace productivity as of the October 2018 VA examination. The Board recognizes the January 2021 Advisory Opinion denying a TDIU on an extraschedular basis. However, the Board finds that the competent and credible lay reports provided by the Veteran coupled with the findings of the October 2018 and January 2021 VA examinations support that the Veteran had symptoms associated with his service-connected disabilities that would significantly impact his ability to perform in an occupational environment. Overall, the evidence shows that due to his service-connected disabilities, the Veteran had significant problems both standing and sitting for significant periods of time, lifting, walking, and bending. Accordingly, the Board finds that resolving all reasonable doubt in favor of the Veteran, entitlement to a TDIU is warranted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16 (b), as of October 15, 2018 the date it is factually ascertainable that the Veteran's service connected disabilities impact his ability to obtain substantially gainful employment. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.