Citation Nr: 22017256 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-39 166 DATE: March 24, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for the period prior to November 22, 2021, is denied. FINDING OF FACT Prior to November 22, 2021, while the Veteran's nonservice-connected disabilities significantly impaired his ability to obtain and maintain substantially gainful employment, he was not unemployable solely due to service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU due to the Veteran's service-connected disabilities, or for referral for an extraschedular TDIU, for the period prior to November 22, 2021, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1991 to March 1997. This appeal arises from September 2015 and October 2016 ratings decisions of the Department of Veteran's Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), rating decision regarding increased ratings for the Veteran's left foot, left shoulder, and right shoulder. The Veteran timely appealed these decisions to the Board of Veterans' Appeals (Board). After the May 2020 remand for further development of the claims, the Veteran applied for TDIU in September 2020 based on his service-connected disabilities. As such, the current claim arose during the pendency of the increased rating claims under Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU was initially denied by the AOJ in a March 2021 rating decision. The appeal returned to the Board in July 2021, where the Board remanded for further development. The Board finds there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a March 2022 rating decision, the Veteran was granted entitlement to left hip replacement residuals (50 percent), right hip replacement residuals (50 percent), degenerative disc disease of the lumbosacral spine (20 percent), and surgical scars (0 percent), effective November 22, 2021. His total rating was increased to 100 percent. The Board acknowledges that there can be situations where a veteran has a schedular total rating for a service-connected disability, and could establish a TDIU for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more. Bradley v. Peak, 22 Vet. App. 280 (2008). In this case, however, the Veteran has asserted that he is unable to work due to the combination of his disabilities, and not due to a particular disability, nor does he have a total rating for any one disability since November 22, 2021. The Board therefore finds that the from November 22, 2021, the issue of entitlement to a TDIU is moot. 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total provided that the Veteran meets the schedular requirements. 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 evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16, 4.19. The mere fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. 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. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). On his September 2020 TDIU application, the Veteran stated that he is unable to shift and cannot pass the department of transportation medical examination. The Veteran also notified the Board that he received Social Security Disability due to his service-connected disabilities. A veteran may qualify for a schedular TDIU on either of two prongs. The first is if a veteran is service connected for one only disability, this disability must be rated at 60 percent or greater. 38 C.F.R. § 4.16(a). The second is if a veteran is service connected for two or more disabilities, one must be rated least at 40 percent or greater, and the combined rating of all disabilities must be 70 percent or greater. Id. A review of the record shows that for the period prior to November 22, 2021, the Veteran met the schedular eligibility for a TDIU under the second prong. The Veteran had a total combined rating of 70 percent disabled as of April 15, 2016, with his right shoulder being rated at 40 percent from the same day onward and his left shoulder being rated at 30 percent disabling. The Veteran also has a 20 percent rating for his left foot from June 7, 2012, onward. Prior to April 15, 2016, the Veteran did not meet the schedular requirements for a schedular TDIU rating because his total combined disability rating was only 60 percent. The Board notes that the Veteran was in receipt of a temporary total rating of 100 percent from September 1, 2017, through October 31, 2017, and from June 14, 2018, to July 31, 2018, for convalescence under 38 C.F.R. § 4.30. The Veteran was already in receipt of special monthly compensation from June 2018 to July 2018 during his convalescence. The Board notes that the Veteran has been found to be disabled by the Social Security Administration. This finding, while persuasive, is not binding on the Board because different criteria must be met for each agency. Upon review of the evidence, the Board finds that, for the entire period prior to November 22, 2021, the Veteran was not prevented from securing and maintaining substantially gainful employment solely due to his service-connected disabilities. Therefore, a TDIU rating is not warranted. Assignment of a TDIU requires that a veteran's inability to maintain employment be due solely to service-connected disabilities. To that end, neither non-service-connected disabilities nor a veteran's age may be considered in determining whether a veteran is entitled to a TDIU. See Van Hoose, 4 Vet. App. at 363. The Board notes that the Veteran has subsequently been granted service connection for left hip replacement residuals, right hip replacement residuals, and lumbosacral spine degenerative disc disease, and assigned an effective date of November 22, 2021. Unfortunately, the Board cannot take these disorders into consideration for the current claim, because prior to November 22, 2021, he had not yet been granted service connection for them, and they were therefore nonservice-connected disabilities. The evidence of record shows that the Veteran worked at Central Prison from 2006 through 2011, for 40 hours or more a week, with gross earnings up to $7,600 a month. The AOJ attempted to obtain additional details regarding the Veteran's occupational history by requesting that the Veteran complete and return VA Form 21-4192. However, the Veteran nor his representative have returned this form. As such, the Board can only consider the evidence before it. The Board also notes that the Veteran informed the November 2021 examiner that he had missed up to a week of work due to his shoulders in the twelve months preceding his November 2021 examination. Based on the Veteran's VA Form 21-8940, it appears that the Veteran worked as a commercial truck driver after his position at Central Prison. The Board notes that the Veteran worked these jobs while his right and left shoulders qualified for a 40 and 30 percent ratings respectively. The Veteran was initially rated at 10 percent for each shoulder in 2001 after separation. However, after separation, and starting in 1998, the Veteran had two surgeries on each shoulder. See e.g., July 2005 Treatment Record (Left shoulder surgery 1998, right shoulder surgery in 2002); March 2002 Treatment Record (April 2001 surgery was easiest of his three shoulder surgeries). The Veteran continued to work with the symptomatology warranting the increased rating of 40 percent for his right shoulder and 30 percent for his left shoulder before the increased ratings were granted based on his June 7, 2012 application for increased rating. See September 2020 Rating Decision. As such, the Veteran had been working in at late as 2011 with all the same shoulder symptoms that he continued to have into the period under consideration, which is 2013 to 2021, and there is no indication in any of the evidence that his shoulders prevented him from performing his work duties or that they were the cause of his leaving his job. A review of the record shows that the Veteran has a high school diploma and is currently enrolled at Binghamton University in biochemistry degree program. See July 2021 VA From 21-674 Report of School Attendance. Based on this, the Board finds that the Veteran is capable of the mental acts required by advanced collegiate education which are similar to those of employment. Additionally, the Board notes that the Veteran worked in a prison, a high stress environment. The Veteran, nor his representative, have claimed any change or impact to the Veteran's mental abilities to complete the kinds of tasks that his previous work history and education show him capable of. As such, the Board finds that the Veteran is capable of performing the mental acts required ot obtain and maintain substantially gainful employment. Regarding the capability to perform the physical acts required to obtain and maintain employment. The Veteran was afforded VA examinations in November 2021 to determine the impact of his various service-connected disabilities on his ability to perform the physical and mental act required by employment. A November 2021 examination found that the Veteran's shoulders do impact his ability to work. Specifically, the examiner opined that the Veteran's shoulder conditions prevent him from pushing, pulling, or carrying heavy loads. The examiner opined that the Veteran is capable of exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, or pull. The definition of sedentary work is work involving sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met. An October 2020 VA foot opinion identified that due to the pain in the Veteran's left heel and along plantar surface, the Veteran is limited in his ability to perform prolonged standing and/or extensive ambulation. The examiner opined that this may limit the Veteran's ability to perform certain jobs requiring long distance ambulation or standing. The examiner found no limitation in the Veteran's ability to perform work that requires intermittent standing/ambulation or in a sedentary seated condition. Examples of jobs the Veteran would be unlikely to be able to perform the required tasks of were security guard or police officer. The Board notes that none of the three non-compensable scar ratings have been found to impact the Veteran's ability to work. The Board notes Social Security Administration (SSA) documents identifying that the Veteran has not engaged in substantially gainful employment since July 14, 2009. SSA records indicate that decision was based on disability caused by multiple disorders, including several that were not service connected at the time: the Veteran's status post anterior cervical diskectomy and fusion in 2008 (not service connected), status post right hip replacement in July 2009 (not service connected), degenerative disc disease, herniated disc and radiculopathy (not service connected), left hip total replacement in 2010 (not service connected), left shoulder AC joint removal in 1997 (service connected), and right shoulder arthroscopic removal in 2001 (service connected). The Board has considered SSA's findings, but a majority of the disabilities serving as the basis for SSA's determination of disability were not service connected, and only service-connected disabilities can be considered by the VA. See Van Hoose, 4 Vet. App. at 363. Regarding the Veteran's experience as a commercial vehicle driver, the Board notes that such employment would be sedentary, in that it is generally seated, only occasionally requiring standing, and not requiring lifting of more than 10 pounds. However, the Board also notes that the Veteran's service-connected disabilities prior to November 22, 2021 would likely not prevent him from passing a department of transportation physical as they impact his ability to stand and conduct overhead work, neither of which is required for driving. While the Veteran's hips disorders, back, and neck disorders likely were sufficient to prevent the Veteran from passing a department of transportation medical physical, these disabilities cannot be taken into account for this period. As such, the Board finds that the Veteran's service-connected disabilities did not preclude the Veteran from completing the physical acts necessary for substantially gainful employment, including employment that was consistent with his education and experience, such as driving, prior to November 22, 2021. The Veteran, through his representative, argues that his pain alone is sufficient for a disability, and that such pain does not simply disappear during "light" or "sedentary" work. The Board acknowledges this and notes that the current ratings for the Veteran's service-connected disabilities for his left and right shoulders and left foot already address the pain and limitations associated with these disabilities. As such, the Board finds that the Veteran's pain has been taken into account when assigning his rating, and there is no probative medical evidence indicating that pain prevented the Veteran from performing all types of light or sedentary work prior to November 22, 2021. Regarding the period prior to April 15, 2016, the Veteran did not meet the schedular requirements for a schedular TDIU rating because his total combined disability rating was only 60 percent. Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU benefits may be granted on an extraschedular basis in exceptional cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. § 4.16(b). The Board cannot award a TDIU in the first instance, because 38 C.F.R. § 4.16(b) requires that the issue first be submitted to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, however, the Board finds that the evidence is persuasively against finding that the Veteran's service-connected disabilities prevented him from following a substantially gainful occupation prior to April 15, 2016, and referral for extraschedular consideration of this period is not warranted. Based on the above, the Board concludes that the evidence persuasively shows that the Veteran was not precluded from following and securing substantially gainful employment solely based on his service-connected disabilities prior to November 22, 2021. The evidence is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Entitlement to a TDIU or referral for an extraschedular TDIU for the period prior to November 22, 2021 is denied. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.