Citation Nr: 21042544 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-54 781 DATE: July 13, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU), prior to March 31, 2018, is denied. FINDING OF FACT Prior to March 31, 2018, the Veteran did not meet the schedular criteria for a TDIU and the probative evidence of record does not reflect that he was unemployable due to his service-connected disabilities in effect at that time. CONCLUSION OF LAW The criteria for a TDIU, prior to March 31, 2018, have not been met. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from September 1963 to September 1967. This matter was previously before the Board in April 2019 where the Board remanded the issue of entitlement to individual unemployability given that it was inextricably intertwined with the issues of entitlement to service connection for a back disorder, bilateral lower extremity radiculopathy, left shoulder disorder, and skin cancer. A combined schedular evaluation of 100 percent was assigned March 31, 2018, rendering entitlement to individual unemployability moot from that date forward. The issue before the Board is therefore whether the Veteran is entitled to individual unemployability prior to March 31, 2018. A TDIU, may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to March 31, 2018, the Veteran had the following disabilities that were service connected: left shoulder disability (rated at 20 percent, from December 28, 2012); back disability (rated at 20 percent, from December 28, 2012); skin cancer (rated at 10 percent, from December 28, 2012); left lower extremity radiculopathy (rated at 10 percent, from September 24, 2014); right lower extremity radiculopathy (rated at 10 percent, from September 24, 2014); residual scar (anterior trunk) (rated noncompensable, from December 28, 2012). The Veteran's combined rating was 40 percent from December 2012, and 60 percent from September 24, 2014. After March 31, 2018, Veteran is service connected for the following additional disabilities: coronary artery disease (CAD) (rated at 100 percent from March 31, 2018); atrial fibrillation associated with CAD (rated at 30 percent from March 31, 2018); special monthly compensation (housebound) (granted from March 31, 2018); and residual scar (lower back) (rated noncompensable, from August 23, 2019). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a) prior to March 31, 2018. Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to March 31, 2018, and therefore referral of the claim is not warranted. The Veteran reports that he was self-employed as a contractor (carpenter) for 50 hours per week from 1969 until May 1, 2018. He has a high school education and indicates that he earned $3,750 per month in his last year of work. In his February 2019 VA Form 21-4192, Veteran asserts that he is unable to work due to his ischemic heart disease. Veteran does not indicate that his other service connected disabilities limited his capacity to work. In October 2019, Veteran was afforded several VA examinations. He was diagnosed with rotator cuff tendonitis and glenohumeral joint osteoarthritis. Veteran indicates this shoulder condition began in 1966 and has worsened over the years with current symptoms described as shoulder pain and stiffness. He reported functional loss due to shoulder pain, stiffness, limited ROM, and difficulty with heavy lifting. The Veteran was also diagnosed with tumors and neoplasms of the skin that are now in remission. Finally, the Veteran was diagnosed with a lumbosacral strain and bilateral lower extremity radiculopathy. The Veteran described his current symptoms as back pain that radiates down his legs, his left leg more than his right. The Veteran reported having flare-ups of his back which occurred up to 10 times per week. His back flare-ups were described as moderate, lasting up to 24 hours, and precipitated by normal activity. The Veteran reported functional loss due to back pain, stiffness, limited ROM, difficulty with heavy lifting, bending, prolonged walking or climbing stairs. The Veteran did not indicate that any of these disabilities caused him to be unable to work nor did he indicate any difficulties performing the physical and mental acts required by his employment. In fact, Veteran continued to work in his same profession until May 2018. In his May 2014 Notice of Disagreement (NOD), the Veteran indicates that he has been receiving Social Security Disability (SSD) benefits since for approximately 10 years. Social Security Administration (SSA) records indicate that the Veteran began receiving SSD benefits in 2003. SSA medical records were sought, but a response was received that none were available for review. In his February 2019 VA Form 21-4192, the Veteran reported that he stopped working because of his ischemic heart disease. He did not indicate any other service-connected disabilities caused him to stop working. He has not indicated what medical conditions caused him to receive SSD benefits beginning in 2003. Despite indicating that he last worked in May 2018, in February 2013, the Veteran reported in VA treatment records that he was retired, but worked occasionally doing manual jobs. A December 2015 VA treatment note indicates that the Veteran reported working part time. A November 2016 treatment note indicates that the Veteran worked as a carpenter and electrician on construction sites for most of his life and still did occasional electrical work for individuals on a word-of-mouth basis. At no time did the Veteran report any difficulties performing the physical and mental acts required by his employment due to his service connected disabilities (at least those for which service connection was in effect prior to March 2018). Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities prior to March 31, 2018. As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). The Veteran indicates that he last worked on May 1, 2018. Prior to that date, he continued to work as a self-employed contractor. The fact that he collected SSD benefits since 2003 is insufficient to indicate that he was unemployable by reason of his service-connected disabilities. Accordingly, referral of the claim for a TDIU prior to March 31, 2018 is not warranted. Therefore, the Board finds that a TDIU prior to March 31, 2018 is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.