Citation Nr: 21041837 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 11-17 799 DATE: July 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 2, 2020, is denied. FINDING OF FACT The Veteran's service-connected disabilities did not preclude him from securing or maintaining substantially gainful employment prior to November 2, 2020. CONCLUSION OF LAW The criteria for a TDIU prior to November 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Board denied the claim on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court issued a Memorandum Decision in which it vacated and remanded the Board's June 2017 decision. The Board remanded the claim on appeal in March 2016, September 2019, May 2020, and October 2020 for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In November 2015, the Veteran testified before a Veterans Law Judge (VLJ), who has since retired from the Board. A transcript of the hearing is associated with the claims file. An April 2021 letter notified the Veteran that the VLJ who conducted the November 2015 hearing was no longer employed at the Board and afforded him an opportunity for an additional hearing. The letter indicated that if the Veteran did not respond within 30 days, the Board would assume that he did not want another hearing. No response has been received to date. Therefore, the Board finds that there is no hearing request pending at this time. Entitlement to a TDIU due to service-connected disabilities prior to November 2, 2020. The Veteran seeks entitlement to a TDIU. His claim was implicitly raised by the record and was considered part-and-parcel of a claim for an increased rating for his low back condition that previously was before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009); March 2016 Board remand. In a February 2021 rating decision, the RO granted entitlement to a TDIU effective November 2, 2020. Therefore, from that date forward, the claim is moot. However, because the claim for a TDIU is part-and-parcel of the higher rating claim that previously was on appeal, consideration must still be given to whether a TDIU is warranted prior to November 2, 2020. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (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). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In the Court's March 2019 Panel Decision, it explained that "substantially gainful employment" contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more 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. Id. Where a Veteran does not meet the percentage requirements, but there is evidence that the Veteran is unable to obtain or maintain substantially gainful employment, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Christensen v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1907 (explaining that the 2018 amendment to 38 C.F.R. § 3.321(b) did not alter the requirement that the Board refer a claim for an extraschedular TDIU to the Director of Compensation Service in the first instance). Prior to November 2, 2020, the Veteran is service-connected for: (1) osteoarthritis with degenerative disc disease, status post compression fracture and transverse fracture (low back disability), rated 20 percent disabling; (2) left lower extremity radiculopathy associated with the low back disability, rated 20 percent disabling; (3) right lower extremity radiculopathy associated with the low back disability, rated 20 percent disabling; (4) tinnitus, rated 10 percent disabling; (5) bilateral hearing loss, rated noncompensable; and (6) right pubic ramus condition with limitation of extension (right hip disability), rated noncompensable. Prior to November 2, 2020, the Veteran's combined rating, in pertinent part, is 60 percent. As such, he does not meet the schedular requirements for a TDIU. As will be explained below, the Veteran's service-connected disabilities did not render him unemployable at any point during the relevant appeal period. Accordingly, the Board declines to refer entitlement to a TDIU prior to November 2, 2020, for extraschedular consideration. A review of the record shows that the Veteran attended two years of college and obtained his associate degree after service. He then worked as a computer repairman for 30 years and as an operator mechanic for six years. See January 2020 VA examination; November 2020 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The veteran last worked full time in April 2012. See November 2020 VA Form 21-8940. Based on the Veteran's education and work experience, the Board finds that he would have the proficiency to work in a physical labor position (from skilled to unskilled) as well as a non-physical labor position, such as in an office-like setting. In this regard, in addition to working as a mechanic and repairman, the Veteran also completed two years of college and obtained an associate degree. His work as a computer repairman for 30 years indicates that he has extensive knowledge and experience working with computers. Thus, the Board finds that the Veteran would have the proficiency to work with computers and perform other types of administrative or clerical work. The Veteran primarily contends that he became unemployable due to his low back disability. See May 2012 VA back examination; November 2020 VA Form 21-8940. At a May 2012 VA examination for his low back, the Veteran reported that he recently stopped working as a mechanic due to the bending, lifting, and climbing required on the job. He reported that he was able to walk upwards of 30 minutes without difficulty. The VA examiner opined that the Veteran's low back disability impacted his ability to work. The examiner noted that the Veteran was no longer able to work as a mechanic due to lifting, bending, and climbing requirements. The Veteran subsequently underwent a VA fee-based examination for his back in February 2012. With regards to functional impact, the examiner noted that the Veteran could lift up to 20 pounds, walk for a quarter mile at one time, walk for a half mile in an eight hour day, sit or stand for 20 minutes at a time, and sit or stand for two hours each in an eight hour day. The examiner also noted that the Veteran was forced to retire early because of limitation in his ability to walk and stand for his job. At the November 2015 Board hearing, the Veteran reported difficulty bending and straightening his back after bending for a period of time. A December 2015 VA treatment record notes that the Veteran had an 18-acre farm but did not do heavy lifting. An April 2016 VA treatment record shows that the Veteran reported staying active and was busy working on his 18-acre farm, working in his garden, and doing a lot of outdoor projects. The Veteran underwent VA fee-based examinations for his back and right hip in May 2016. At the examinations, the Veteran reported that he was working with cows prior to his appointment, did a lot of bending and pulling, as well as climbing in and out of a tractor. The Veteran also reported that he could not garden or work on his car for more than an hour because of bending. He reported that his back begins to stiffen if bending more than five minutes. He also reported that he could not sit for more than 10 minutes before having to stand up. He noted that he can stand for 20 minutes before having to stop what he is doing. He noted that he could lift 40 pounds without any issues, can feed cows on his farm, place hay out, and use a tractor. At a January 2020 VA fee-based examination for his back, the Veteran reported that his walking is limited to 100 yards and that he can only stand for 30 minutes. He also reported that he could not sit long. The examiner noted that the Veteran had limited endurance for sitting and standing as well as an inability to walk for more than 30 minutes before needing to sit down. It also was noted that the Veteran's lifting was limited to 20 pounds infrequently. At a January 2020 VA fee-based examination for his right hip, the Veteran reported that he could not walk far due to his hip disability and that sitting for a while makes him very stiff. The examiner noted that the Veteran is unable to walk or stand longer than 15 minutes without needing to change positions and also has a limping gait. With regards to the Veteran's hearing loss, at a January 2020 VA fee-based examination, the Veteran reported that he often has to ask people to repeat themselves. He also described hearing difficulties in his previous employment. The examiner noted that the Veteran may experience communication difficulties at normal conversation levels, especially when in noisy situations or in environments with low levels of background noise. With regards to his tinnitus, the Veteran only reported that it bothered him sometimes but did not note any functional limitations caused by his tinnitus. See January 2020 VA fee-based examination. The evidence of record also shows that the Veteran has experienced sensory symptomatology during the relevant appeal period, such as pain and numbness, in his bilateral lower extremities due to his radiculopathy. See VA examinations. Based on a review of all the evidence of record, the Board finds that the Veteran's service-connected disabilities did not preclude him from being able to secure and maintain substantially gainful employment prior to November 2, 2020. While it is clear that the Veteran's service-connected disabilities, particularly his low back, would have precluded work in any role requiring moderate to strenuous physical labor, they would not have precluded work in an office-like setting where heavy labor is not required. While the evidence of record shows that the Veteran would have had difficulty with prolonged standing or sitting, a job in an office environment performing administrative tasks or other computer work would likely allow the Veteran the ability to change positions, rest, and take breaks as needed to relieve his back, hip, and bilateral lower extremity pain. Additionally, such a position would likely not require lifting more than 20 pounds, repeat or frequent bending, or prolonged walking. Moreover, while the Veteran's hearing loss may cause some difficulties working in an office-like environment, it would not completely preclude such work. Such environment likely would be relatively quiet, and at most, the Veteran would need to ask others to repeat themselves, but such would not prevent him from working. In addition, the Board also notes that up until at least 2016, the evidence of record indicates that the Veteran also may not have been precluded from working in a position requiring light physical labor, such as yard/landscape maintenance or security work. In this regard, the evidence shows that despite his service-connected disabilities, he was able to work on his farm performing gardening, outdoor projects, lifting hay, climbing in and out of a tractor, bending and pulling, and tending to cows. However, regardless of any ability to perform physical labor, at no point during the relevant appeal period would the Veteran's service-connected disabilities have precluded work in an office-like setting. The Board acknowledges that in its October 2020 remand, the Board found that the January 2020 back and hip VA fee-based examinations were inadequate essentially because the examiner did not note the Veteran's complaints as to the functional impact that his service-connected back and hip disabilities have on his employment, and thus, there was not substantial compliance with the September 2019 remand. However, a further review of the examination reports indicates that the examiner did consider the Veteran's complaints as to the functional impact his service-connected disabilities have on his employment. Specifically, the examiner noted that the Veteran reported difficulty with walking, standing, and sitting, all of which were included the examiner's opinion regarding the disabilities' impact on his ability to perform occupational tasks. As these limitations were included in the examiner's opinion, in addition to a limping gait, such indicates that the examiner did in fact consider the Veteran's lay statement regarding functional limitations caused by his service-connected back and hip disabilities. Moreover, to the extent the examiner did not elicit the Veteran's complete education, vocational, and employment history, such was elicited from the January 2020 VA fee-based examiner who conducted the Veteran's hearing loss and tinnitus examinations. Moreover, in the April 2019 Memorandum Decision, the Court noted that it was unclear whether the May 2016 examiner was a "vocational or similar specialist" as requested by the Board's March 2016 remand and that the Board failed to discuss whether the exam substantially complied with the Board's directives in light of such omission. Although it is not clear whether the May 2016 examiner was a vocational or similar specialist, the Board finds that the March 2016 remand directives have been substantially complied with. In its remand, the Board specified that the VA examiner should be a vocational or similar specialist only if possible. There is no evidence of record to indicate, and the Veteran has not contended, that the May 2016 examiner lacked the expertise and training to address functional limitations in employment caused by the Veteran's service-connected disabilities. Additionally, the examiner's opinion is consistent with the other evidence of record, including the Veteran's lay statements regarding functional limitations as well as other opinions regarding limitations in performing occupational tasks. See January 2020 VA fee-based examinations. Furthermore, the Board notes that the determination of whether the Veteran is able to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a legal determination and not a medical one. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). In sum, the preponderance of the evidence shows that the Veteran's service-connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment prior to November 2, 2020. Accordingly, based on the record, there is no basis for referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). The claim for a TDIU prior to November 2, 2020 is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.