Citation Nr: 21032879 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-01 737 DATE: May 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 16, 2013 is denied. FINDINGS OF FACT 1. Prior to December 16, 2013, the Veteran's service-connected disabilities included: anxiety disorder not otherwise specified at 30 percent and diabetes mellitus, type II, at 20 percent. The Veteran's combined service-connected schedular rating was 40 percent from March 4, 2011. 2. The Veteran's service-connected disabilities have not shown to preclude him from securing or following a substantially gainful occupation consistent with his education and occupational background. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met prior to December 16, 2013. 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 Army from May 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in February 2015 and a Statement of the Case (SOC) was issued in December 2015. The Veteran perfected an appeal by submitting a timely VA Form 9 in January 2016. The issue was previously before the Board, in September 2018 and in September 2020. In September 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to refer the Veteran's claim to the Director of Compensation Service for extraschedular consideration of entitlement to TDIU prior to December 16, 2013 and to readjudicate the claim thereafter. In March 2021, the AOJ obtained a memorandum from the Director of Compensation Service, and another from the Executive 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 denial in a supplemental statement of the case (SSOC) issued in March 2021. 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 TDIU prior to December 16, 2013 The Veteran contends that he is entitled to TDIU on an extraschedular basis prior to December 16, 2013. Previously, he had contended that the severity of his symptoms related back to his original date of claim for anxiety disorder, March 4, 2011. Prior to December 16, 2013, the Veteran's combined disability rating was 40 percent, with a 30 percent rating for anxiety disorder not otherwise specified and a 20 percent rating for diabetes mellitus type II, both effective March 4, 2011. Factual Background VA Medical Center treatment records show that the Veteran reported working as a plumber in January 2011. In May 2011, the Veteran was afforded a VA examination for his anxiety disorder and diabetes mellitus type II. In pertinent part, the Veteran reported that he had no symptoms or complaints on account of diabetes, he had never been hospitalized for episodes related to diabetes, he was not on insulin, and he followed a diet avoiding sugars and limiting his portion intake. The examiner noted that the Veteran had no restrictions on his employability, activities of daily living, or other activities on account of his diabetes mellitus. The Veteran reported that he was diagnosed as having diabetes in February 2011. During the VA examination for his anxiety disorder, the Veteran reported that he lost about 1 week of work during the last 12-month work period due to doctor's appointments. The examiner opined that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning. In July 2011, the Veteran reported that he hoped to retire at age 62 later this year, but he planned to keep busy with small plumbing jobs and fishing. In December 2011, the Veteran reported that he was looking forward to retirement because the company he worked for became "so political" and had caused additional stress. He also reported that his life changed over the past year because he stopped drinking and is working to get his diabetes and hypertension under control. The Veteran also reported that his self-esteem improved. In February 2012, he reported that he was working part-time as a plumber. In May 2012, the Veteran submitted an application for increased compensation based on unemployability. The Veteran wrote that he worked as a plumber from July 1982 to January 2012 and became too disabled to work on December 29, 2011. In July 2012, the Veteran reported that he "helps out a friend a little with his plumbing business on occasion" and he was adjusting well to retirement. In May 2013, the Veteran reported that he accepted an offer to work a few hours per week plumbing, and he enjoyed the work. In March 2016, the Veteran submitted a Disability Benefits Questionnaire from April 2015 stating that "he was no longer able to do the job because of his diabetes" in 2011. The private practitioner who interviewed the Veteran opined that the Veteran was unable to obtain and maintain gainful employment due to his anxiety disorder. In December 2016, the Veteran reported that he worked as a plumber approximately 10 hours per week. In December 2018, the Veteran submitted an application for increased compensation based on unemployability and wrote that he worked until 2013. In an application submitted in July 2019, the Veteran indicated that he worked until January 2012. In March 2021, the Director of Compensation Service ("Director") opined that the Veteran was not entitled to TDIU on an extra-schedular basis prior to December 16, 2013. In pertinent part, the Director cited the Veteran's primary care provider at the VA who did not place any restrictions on the Veteran based on the Veteran's service-connected diabetes mellitus type II. Similarly, the Director noted the Veteran's May 2011 VA psychiatric examination that found his symptoms did not interfere with occupational and social functioning. After weighing the evidence of record, the Director found that there was no occupational impairment caused by the service-connected disabilities prior to December 16, 2013 and that the effect of the Veteran's disabilities was contemplated by the regular schedular rating criteria. In March 2012, the Executive Director of Compensation Service ("Executive Director") also found that the Veteran's service-connected disabilities did not preclude him from obtaining and maintaining gainful employment. The Executive Director cited the Veteran's high school education and work history as a plumber and his service-connected disabilities were well managed with medications. Analysis 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 on an extraschedular basis. When limiting the consideration to the effects of the Veteran's service-connected disabilities, the evidence does not demonstrate that his service-connected disabilities prevent substantially gainful employment. As discussed at length above, the Veteran's service-connected disabilities did not prevent him from working as a plumber. Rather, according to the Veteran's own contemporaneous reports, his retirement was due to the political atmosphere at work. The Veteran also reported that he looked forward to retiring, and he enjoyed working part-time. Most significantly in this case, the Veteran reported that his symptoms from service-connected disabilities, especially diabetes mellitus type II, were in control and did not affect him, in direct contrast to his statements in March 2016. Furthermore, the VA examinations conducted prior to December 16, 2013, while demonstrating that the Veteran was diagnosed as having disabilities, do 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 his disabilities causing his retirement between 2011 and 2013, he has also consistently reported not having significant symptoms, retiring due to reasons other than health, and enjoying performing the same work part-time. While the Board recognizes the Veteran's limitations due to his service-connected disabilities, these limitations were considered in the assigned evaluations he receives for those disabilities. Again, the assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. However, despite these limitations, the Board finds that the most probative evidence shows that the Veteran was able to secure or maintain substantially gainful employment due solely to his service-connected disabilities prior to December 16, 2013. Rather, the Board finds that the Veteran could perform the physical and mental acts required for employment as he contemporaneous medical treatment records indicated. Accordingly, the Board finds that the preponderance of the evidence is against the claim of TDIU prior to December 16, 2013, 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. Katherine Kiemle Buckley 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.