Citation Nr: 23015437 Decision Date: 03/15/23 Archive Date: 03/15/23 DOCKET NO. 15-22 441 DATE: March 15, 2023 ORDER Entitlement to a total disability rating based on individual unemployability prior to August 10, 2020, is denied. FINDING OF FACT Prior to August 10, 2020, the Veteran was not unable to secure follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability prior to August 10, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1991 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 and September 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, April 2022, and September 2022, the Board remanded this matter. In August 2021, the Board took jurisdiction of the issue pursuant to Rice v. Shinseki, 22Vet. App. 447, 453-54 (2009), and remanded the issue to request the Veteran submit a VA Form 21-8940, Application for Increased Compensation based on Unemployability. The April 2022 and September 2022 remands were because the issue was inextricably intertwined with the other issue on appeal. The requested actions of these remands were completed, and the case has now been returned to the Board for further appellate action. The issue of service connection for a right bicep tear was previously on appeal. In a December 2022 rating decision, service connection for the disability was granted by the RO. The issue, therefore, is fully resolved and is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As a preliminary matter, beginning August 20, 2020, the Veteran has a 100 percent disability rating and special monthly compensation at the statutory housebound rate as set forth in 38 U.S.C. § 1114(s). A TDIU beginning August 20, 2020, is moot. 1. Entitlement to a total disability rating based on individual unemployability (TDIU). As noted above, the issue of entitlement to a TDIU was taken by the Board in its August 2021 decision and remand pursuant to the Veteran's increased ratings issues already on appeal. He has not submitted evidence or lay statements in support of a TDIU. 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. 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). The Veteran has disabilities that combine to form a 60 percent overall rating beginning January 22, 2013, a 70 percent rating beginning May 6, 2016, an 80 percent rating beginning July 1, 2018, a 90 percent rating beginning May 3, 2019, a 100 percent rating beginning October 18, 2019, and a 90 percent rating beginning December 1, 2019. During the period of the 60 percent rating, the Veteran did not have one disability evaluated at 60 percent, even when considering the two ratings for left lower extremity radiculopathy and the rating for the low back as one disability. Based on the forgoing, prior to May 6, 2016, the Veteran's disability ratings did not qualify for schedular consideration. Beginning May 6, 2016, with that addition of the service-connected biceps tear associated with the low back disability, the Veteran's disabilities combined to at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU beginning May 6, 2016, on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a schedular TDIU is not warranted and referral for extraschedular consideration is not warranted either. Initially, the Board notes that, pursuant to the August 2021 Board remand, the RO provided the Veteran with a VA Form 21-8940 in a September 2021 correspondence. The correspondence stated that: You may be entitled to compensation at the 100 percent rate if you are unable to secure and follow a substantially gainful occupation because of your service-connected disabilities. If you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not submit a completed and signed form. Thus, the Board lacks significant information that might have aided in establishing the Veteran's claim because the remainder of the record does not provide great detail about his work history and income. What the Board gleans from the record in this case is that, as of a July 2012 VA treatment record, he was working as a supervisor in the construction company. A February 2013 VA treatment record shows he was about to start a new job as a supervisor in a friend's construction business. An October 2013 VA treatment record shows he stopped taking pain medications due to his job. This indicates that he was employed during this time. The record does not show how many hours per week he worked at these jobs or what his earnings were. A March 2014 VA treatment record shows the Veteran believed he was being "held back from jobs" because of the narcotics, Lortab and morphine, but he needs these for his pain. A July 2014 VA treatment record shows he was undergoing opioid therapy with a goal of returning to work as a general contractor. May 2014, July 2014, October 2014, January 2015, and February 2015 VA records note that he was looking for a job as a "gate guard or similar job." An April 2015 VA treatment record shows the Veteran stated he had not worked in two years. At an August 2019 VA examination, the Veteran reported having a high school education. He stated he worked in construction management until 2012, some of this time as a superintendent. At an October 2020 VA examination, the Veteran reported that the numbness and tingling in his lower extremities caused him pain during his job due to long periods of standing/walking on job sites and, ultimately, he retired due to his back and lower extremity pain. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of low back, radiculopathy of the left lower extremity, and knee disabilities prior to May 6, 2016. It is additionally impacted by his right bicep disability beginning May 6, 2016. It is impacted additionally by right lower extremity radiculopathy beginning November 2, 2017. The February 2013 VA spine examination showed the impact of the Veteran's thoracolumbar spine disability on his ability to work was that he was restricted from performing heavy lifting, bending or reaching. The February 2013 VA knee examination showed the impact of the Veteran's right knee disability on his ability to work was that he was restricted from performing bending, squatting, and kneeling due to right knee weakness and pain. The September 2016 VA elbow and forearm examination showed the impact of the Veteran's bicep disability on his ability to work was that he has pain with lifting and repeated use of his elbow. At the December 2017 VA spine examination, the Veteran reported pain with heavy lifting or prolonged standing or sitting. In the December 2017 VA examination, the Veteran reported pain in bilateral knees with the use of stairs. In the August 2019 VA arm examination, the Veteran reported ongoing pain when reaches up high reaching for things. The December 2019 VA back examination showed the impact of the Veteran's thoracolumbar spine disability (which also addressed radiculopathy) on his ability to work was that he was restricted from performing heavy lifting, pushing or pulling. The Veteran's ability to work is impacted by tinnitus beginning May 3, 2019, which is the date that service connection was granted. In the August 2019 VA audiology examination, the Veteran stated he needs masking noise to get to sleep. He reported that hearing loss did not impact his ability to work. The Veteran did not report any significant effects on his ability to work from his low back scar, nor could the Board fathom such effects. Similarly, the Veteran denied in the February 2018 VA examination that gastroesophageal reflux disease impacted his ability to work. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his unspecified depressive disorder beginning May 3, 2019, which is the date that service connection was granted. The Veteran described having more difficulty focusing on day-to-day activities and remembering to do certain tasks that previously had not been a problem. He reported constant hypervigilance, frequently reacting to loud noises, feeling jumpier than most people, and being easily startled. He reported that he feels ill at ease in large crowds and avoids them. Given the forgoing, the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education skills and work history. The Veteran has worked as a construction supervisor, indicating a somewhat high degree of intellectual and interpersonal skill. While his physical limitations posed difficulty in the particular position he held, the evidence does not establish that the Veteran could not secure or follow a position that involves less physical work. For example, in 2014 and 2015 he expressed interest in in finding work as a "gate guard or similar job," which is an occupation that would not involve frequent physical labor such as lifting, bending, prolonged walking, or kneeling. With the Veteran's supervisory experience, he has skills that would more than likely be transferable to a job that is less demanding on his physical exertion, such as overseeing construction workers as they engage in physical work or doing office work at a construction company. Although in the December 2017 VA spine examination, the Veteran reported pain with prolonged sitting, the degree of pain and whether it is such that it precludes employment is not established. An occupation with reasonable breaks allowing for stretching and standing is not precluded by the evidence of record. The Veteran's mental impairments from his depressive disorder also do not preclude substantially gainful employment. The difficulty focusing and remembering has not been established to be severe enough to preclude employment. At the April 2019 mental disorders examination, he described trouble focusing on "day to day activities," and "remembering to do certain tasks." The examiner described his memory loss as "mild." The medical evidence of record does not address the severity of his memory problems or difficulty focusing. He denied memory loss at June 2019 and September 2019 pain clinic outpatient appointments. The level of memory loss and concentration difficulty addressed at his VA examination does not show that he would be unable to function in a work environment. While the Veteran reported he feels ill at ease in large crowds, many employment environments, including construction, do not involve large crowds. The evidence also does not establish that the Veteran's hypervigilance and jumpiness is severe enough to impact his employment in any material way. The VA examiner concluded that the Veteran's occupational and social impairment was with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). While this is not binding on the Board, it is persuasive about the severity of the disability. On the question of whether to refer a claim to the Director, Compensation Services, for consideration of awarding an extraschedular rating, the Board observes that the initial extraschedular referral decision under § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). This is a low threshold. See id. The evidence showed that he was working in some capacity until April 2014 and therefore no referral is warranted for this period. As noted above, the record does not provide information regarding hours worked and income earned prior to April 2014 and the Veteran did not submit the VA Form 21-8940 to provide this information. (continued on next page) Nonetheless, even under the low threshold established in Ray, the fact remains that the Veteran had significant knowledge and skills that could be transferred to a less physically rigorous job such as a gate guard, which is the type of job he was seeking in 2014 and 2015. During the period where the Veteran did not meet the schedular criteria (prior to May 6, 2016) and he was not working, his service-connected disabilities were limited to his right knee, left lower extremity, low back and right knee scar. He also had noncompensable ratings for residuals of a burn on the right hand and a laceration of the left thumb, which the record does not indicate caused him any impairment. The evidence indicates that he could not do heavy lifting, bending, or reaching using his back and lower extremities, but his most recent jobs were supervisory which shows that he was able to perform in a less physical role that would not involve such tasks. The Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable prior to May 6, 2016 by reason of his service-connected disabilities. Thus, remand for extraschedular consideration would be unproductive and is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.