Citation Nr: 25008784 Decision Date: 07/03/25 Archive Date: 07/03/25 DOCKET NO. 18-00 421 DATE: July 3, 2025 ORDER Entitlement to a rating of total disability based on individual unemployability (TDIU) is denied. Referral for consideration of a TDIU on an extraschedular basis is denied. FINDINGS OF FACT 1. The schedular criteria for a TDIU are not met, and the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 2. The evidence of record is not sufficient to establish a reasonable possibility that the Veteran's service-connected disabilities, alone, render him incapable of performing the mental and physical acts required by employment. CONCLUSION OF LAW The criteria for a TDIU, to include referral for extraschedular consideration, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1972 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Board previously considered this matter in September 2020 and March 2021, remanding TDIU for additional development. In July 2021, the Board denied the Veteran's claim for TDIU, but that decision was vacated and remanded by the United States Court of Appeals for Veterans Claims (Court) in August 2022. The Court found that the matter of TDIU was inextricably intertwined with a claim for service connection for an acquired psychiatric disorder, which in turn was remanded for additional reasons and bases regarding the adequacy of a VA psychiatric examination. In November 2022, the Board remanded the psychiatric claim for a new examination, and the matter of TDIU was remanded as inextricably intertwined with the psychiatric claim. In May 2023, the Board denied both claims. The Veteran appealed again to the Court and, in January 2024, the Court vacated the May 2023 Board denial of TDIU and remanded the matter to the Board for action consistent with a joint motion for partial remand (JMPR). In February 2024, the Board once again denied a TDIU; the Veteran appealed to the Court and, pursuant to a February 2025 JMR, the Court remanded the matter back to the Board. TDIU The Veteran seeks a rating of total disability based on individual unemployability (TDIU). See October 2016 VA Form 21-526EZ; January 2017 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran's service-connected disabilities include kidney stones, rated 20 percent disabling, and De Quervain's tenosynovitis of the right hand with a calcification, rated 10 percent disabling, for a combined disability rating of 30 percent. Therefore, he does not meet the percentage threshold set forth in 38 C.F.R. § 4.16(a). Accordingly, a schedular TDIU is not warranted. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). If the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As described in Ray v. Wilkie, the correct standard for a TDIU 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). After Ray, the Court stated that entitlement to an extraschedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. Snider v. McDonough, 35 Vet. App. 1, 8 (2021) (en banc review denied May 20, 2022). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Court has held that the phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and 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, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). In the Veteran's December 2016 application for TDIU, he reported that his posttraumatic stress disorder (PTSD) prevented him from securing or following substantially gainful occupation. The Veteran has not been service-connected for PTSD or any other psychiatric conditions during the pendency of this appeal. The Veteran also reported at that time that he had last worked full time in November 1974 as a soldier in the Army. In response to a question about seeking employment since becoming too disabled to work, the Veteran stated, "several places," with no further explanation. He reported completing one year of college, but he otherwise had no special education or training. See December 2016 VA Form 21-8940. The Veteran submitted another TDIU application in July 2019, in which he reported that he was unable to work because of anxiety, PTSD, hearing loss, tinnitus, and problems with his back, arms, legs, knees, hips, ankles, feet, and kidneys. The Board is mindful that, of all these, the Veteran is only service-connected for right hand and kidney disabilities. The Veteran further reported that he had last worked full-time from 1986 to 1987 as a boat mechanic. He again indicated vaguely that he had tried to obtain employment "several places" since then, with no further details. He checked a block showing completion of 2 years of college (compared to 1 year indicated on his previous application), with no further detail provided. He again reported having no other special education or training for employment. See July 2019 VA Form 21-8940. Generally consistent with the above, a VA physician noted at the end of 2015 that the Veteran was unemployed, but he was working on repairing a boat for fishing. See May 2017 CAPRI, p. 148 (12/15/2015). A year later, a psychiatric progress note reflected that the Veteran was unemployed for the past 20 years, with his last work as a maritime mechanic. Id., p. 47 (12/30/2016). A VA examiner noted in March 2017 that the Veteran had been working part-time in an auto body shop, and doing small jobs here and there, but otherwise had no regular employment. See March 2017 Compensation and Pension (C&P) Examination, p. 5. A psychotherapy intake record in 2022 mentioned that the Veteran had graduated high school, but that record shed no light on his reported college education. See December 2022 CAPRI, p. 17 (9/6/2022). Other evidence potentially relevant to work skills includes an April 2000 notation that the Veteran "[o]ccasional[ly] works as smolderer [sic]" and March 2015 and July 2015 reports that the Veteran was taking, enjoying, and doing well with computer classes. As shown above, the Veteran's reports of work history and training have been generally consistent during the appeal period, but with discrepancies as to his last full-time employment history and education history. Nonetheless, the Board accepts that the Veteran has not worked full-time throughout the period on appeal, and thus he meets the economic component as outlined in Ray for consideration of a TDIU. The Board also accepts that the Veteran earned a high-school diploma. He may have had some college, based on his conflicting reports, but it does not appear that he has earned a college degree. Still, he has some special training and experience as a boat mechanic, based on his several lay reports to that effect. During an August 2012 VA examination, the Veteran reported a history of bilateral flank pain (rated as 7/10) as well as recurrent nephrolithiasis involving small stones that passed spontaneously and did not require hospitalizations or surgical intervention. See August 2012 C&P Examination. The VA examiner diagnosed kidney stones, a congenital polycystic kidney disorder (PKD), chronic kidney disease (CKD), and attributed edema and bilateral flank pain to renal dysfunction. Importantly, the August 2012 examiner found no signs or symptoms due to urolithiasis or kidney stones, the only service-connected kidney condition. Nevertheless, during the examination, the Veteran reported "functional impairment due to kidney condition" and the examiner, in the functional impact section wrote that the "Veteran claims to have bilateral flank pain, which impairs his ability to work." See August 2012 C&P Examination (some capitalizations omitted). However, the Board observes that the Veteran did not specifically report functional impairment due to his service-connected kidney stones in August 2012, but rather his "kidney condition" and flank pain. Even further, regarding flank pain, the Veteran's kidney, abdomen, or flank pain discussed during treatment has been mainly attributed to nonservice-connected PKD and cysts rather than kidney stones. See, e.g., May 2017 CAPRI, pp 400-401 (7/14/14) (Veteran discussing "his polycystic kidneys and the pain it causes him."); December 2018 CAPRI, (5/16/17) (noting constipation and abdominal pain with CT evidence of non-obstructive pattern and displacement of colon from renal cyst), (10/6/17) (noting moderate, sharp, left abdomen pain caused by large cyst), (12/6/17) (noting immediate relief of abdominal pressure and discomfort with cyst aspiration); March 2021 CAPRI (12/29/20) (noting treatment for PKD and CKD and report of occasional pain at his kidney sites secondary to PKD); December 2022 CAPRI (6/6/21) ("complains of occasional flank pain secondary to his PKD"); see also November 2008 Private Medical Statement (noting the Veteran to experience radiating flank pain and explaining enlarged kidneys from multiple cystic formations caused extrinsic pressure effect upon the pelvocaliceal system of both kidneys). Thus, it is entirely possible that in August 2012, the Veteran was reporting functional impairment due to his PKD and CKD and not kidney stones. In any event, given the presence of nonservice-connected PKD and CKD, the absence of signs and symptoms attributed to kidney stones, the qualification in both instances that the "functional impairment" was based on the Veteran's self-report, the record after August 2012 showing actual ability, and absent any discussion of which or how signs and symptoms of kidney stones caused functional impairment or the specific functional impairment being claimed, the Board finds the August 2012 notation of functional impairment due to kidney stones to be lacking in both credibility and probative value. At a March 2017 VA examination, the examiner diagnosed kidney stones, as well as non-service-connected congenital polycystic kidney disease and chronic renal disease. The examiner indicated there was no impact due to the service-connected kidney stones on the Veteran's ability to work. See March 2017 C&P Examination. In October 2019, another VA examiner confirmed the same diagnoses, noted frequent attacks of colic, and again indicated that there was no functional impact due to the kidney stone condition specifically. See October 2019 C&P Examination. Notwithstanding that the examiner found no functional impact, the Board observes that the examiner's finding of frequent attacks of colic is generally inconsistent with the clinical record during the appeal period, which does not show treatment for or reports of colic or obstruction due to kidney stones, or indeed actual kidney stones at all. An August 2012 VA examiner opined that the Veteran's De Quervain's tenosynovitis of the right hand did not impact his ability to work. At that time, grip strength was full bilaterally. The most recent VA examination for the right hand disability was in March 2014, at which time the examiner indicated less movement than normal, weakened movement, pain on movement, and deformity to the Veteran's right thumb, due to his service-connected condition. The examiner wrote that there was functional impact insofar as the Veteran's ability to use tools was negatively affected by his right thumb pain upon strong hand grip. See March 2014 CAPRI, p. 5 (3/17/2014 C&P Examination). The Board observes that an earlier November 2008 statement from a private physician similarly noted that the Veteran had pain and an inability to form a complete and good grip of things with his right hand. The Board is mindful, however, that during the March 2014 VA examination, the Veteran exhibited some weakness in his right hand grip, but strength was mostly maintained at 4/5, indicating active movement against some restrictions. Furthermore, the year following the March 2014 VA examination, the Veteran reported working on a project to repair a boat, suggesting that his right hand disability did not preclude this type of work altogether. See May 2017 CAPRI, p. 148 (12/15/2015). Indeed, in September 2016, he reported that he repaired old vehicles and boats to keep himself busy. See May 2017 CAPRI, p 72 (9/13/16). Thereafter, he reported helping his mother and close neighbors rebuild and perform repairs after a hurricane in February 2018; working on cars and feeding the animals to manage negative thoughts in March 2018; that his hobby was repairing old cars in July 2018; and that he was continuing mechanical work in September 2018. See December 2018 CAPRI, pp 3-4 (7/24/18), p. 28 (3/16/18), p. 35 (2/2/18). Then, in January 2019, he reported that he "continue[d] to work on his Jeep (classic) and plan[ned] to complete the restoration this year." See October 2019 CAPRI, p. 71 (1/7/19). The record also shows reports of heavy weightlifting and fixing a car in March 2011, working with a gas tank at his house in November 2014, working at home with a pressure washer in March 2015, and performing heavy lifting in July 2015. More recently, the Veteran reported in September 2022 that he "continues to stay as active as possible by doing things at his home and taking care of his animals." Notably, the question of employability is ultimately a legal one, not a medical one. Upon review of the record, the Board finds that the credible evidence does not show the Veteran's service-connected disabilities resulted in functional impairment that rendered him unable to secure or follow a substantially gainful occupation for the appeal period. Except as otherwise discussed, the Board affords significant probative weight to the VA examiners' opinions, as they were based on physical examinations of the Veteran and a review of his record, to include his medical history, work history, and lay statements. Moreover, the opinions focused on the Veteran's disabilities during the relevant period. The Board also finds that the evidence is not sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities to warrant referral of the TDIU claim to the Director, Compensation Service. Ray, 31 Vet. App. At 66. Although the Veteran may have difficulty with work requiring heavy or strenuous physical exertion related to his right hand, such as using tools with a strong hand grip, there is insufficient evidence to support even the possibility that he is unable to perform duties consistent with the sorts of work that require body movement and standing, but do not require such specific heavy exertion to his grip, such as machine operation, transportation, warehousing, or even other work around boats with other types of tools. Similarly, the record is insufficient to support a reasonable probability that the Veteran's right hand or kidney stones even mildly impair his ability to perform predominantly seated work, such as clerical work or work in a shop, or work involving driving. The Veteran's high school diploma indicates he is able to perform within an occupational setting that requires the ability to read, write, and do basic math, and similarly perform typing, filing, or other administrative tasks. See Way v. McDonough, No. 23-0571, 2023 U.S. App. Vet. Claims LEXIS 1799 (U.S. Vet. App. Nov. 22, 2023). There are no showings of any limitations to the Veteran's non-exertional abilities, nor to his mental abilities, due to his service-connected disabilities. Other than as documented on the August 2012 examination report, there is no asserted specific or identifiable functional or occupational impairment found to be associated with kidney stones. With respect to the functional impairment related to the right hand as noted by a March 2014 VA examiner, the Board finds it insufficient to support a reasonable possibility that the disability renders the Veteran unemployable, as most of the right hand strength and hand function are maintained (there has been no finding of functional limitation beyond grip), and there is affirmative evidence that the any impairment is not prohibitive. For instance, the record shows that, despite the right hand (and kidney stone) disability, the Veteran was still able to: fix and restore cars and boats throughout the appeal period; rebuild and repair homes and/or perform mechanical work; care for his elderly mother full time; care for four to five dogs and over 30 roosters; fish; perform all housework by himself; and build a fence and "work the land." See May 2017 CAPRI, p 320 (3/6/15), p 339 (12/1/14); October 2019 CAPRI, pp 61-63 (10/11/18); March 2021 CAPRI, p. 25 (12/2/20), p. 110 (2/24/20). Notably, the Veteran performed all of the activities discussed above without reported complaints or impairment related to his right hand or kidney stones. The Board finds that absence of reports probative, as the Veteran elsewhere sought treatment for other pain and/or reported when symptoms impaired his ability to perform activities such as activities of daily living (ADLs). For instance, following a right shoulder injury, the Veteran reported in December 2015 that he had developed muscle weakness and had difficulty in performing his ADLs. As for pain, the Veteran sought treatment in April 2016 for left heel pain incurred after jumping from a height of six feet and in October 2017, he reported pain related to a burn injury to his right upper abdomen. In March 2018, he stated that he had many pains in different parts of his body. In February 2020 and September 2020, he sought treatment for right ankle pain and in June 2022 he reported knee pain as well. Thus, the Board finds that the general absence of reports of pain and/or functional impairment related to the right hand weighs against a finding of any significant degree of impairment, particularly in light of the Veteran's participation in numerous activities that likely required extensive use of the hands. The Veteran also frequently denied pain, reported minimal or mild pain, reported that he felt great, and/or was observed to be in no distress even when pain was reported. In that vein, a VA functional assessment performed in October 2018, at which time the Veteran reported kidney pain rated as 7/10 and right knee pain rated as 5/10. The assessment specifically addressed occupational areas, activity limitations, and participation restrictions. Despite his reported pain, and his known kidney condition, it was noted that the Veteran was independent in eating, grooming, dressing, and functional mobility, though additional time or effort was needed for bathing (for unspecified reasons). Regarding instrumental ADLs, the Veteran was independent in community mobility and health maintenance, and he participated in clothing care, cleaning, cooking, and shopping. It was also noted that he did all the house chores by himself, took care of his mother, went fishing, and took care of four dogs. The Veteran reported he was neither working nor looking for work, though he did report that he worked as a boat mechanic until his kidney condition worsened. Nevertheless, no actual impairment or limitation specific to kidney stones or a right hand disability was reported or found. Also noteworthy is an initial vocational rehabilitation assessment conducted in August 2014, during which time it was noted that the Veteran had no barriers to employment, to include physical disability. See May 2017 CAPRI, pp. 373-377 (8/27/14). He also reported at that time, with respect to the only employment listed other than his service, that he was "[l]aid off" from his job as a mechanic at a marina, and not that he stopped working due to a medical condition as he has stated elsewhere. Interestingly, during mental health treatment in March 2011, the Veteran reported that he "used to be good at mechanics but now cannot perform procedures as usual even though he is told how to do these." In terms of functional capacity at that time, it was noted that he had difficulty performing tasks because of an inability to focus. In any event, while the Veteran's service-connected right hand and kidney stone disabilities undoubtedly produce some impairment, the evidence does not raise a reasonable possibility that they, alone, render the Veteran unable to perform the physical and mental acts required by employment. Apart from the Veteran's own reports of functional impairment due to a kidney condition (and not specifically kidney stones) and flank pain, the evidence supportive of service-connected functional impairment relates to the right hand and indicates difficulty with tasks requiring a strong grip. Difficulty with work requiring a strong grip is not sufficient to suggest unemployability, particularly when viewed in conjunction with the record as a whole, which affirmatively demonstrates the Veteran's continued ability to use tools and perform mechanical work throughout the appeal period and notably, without any contemporaneous reports of difficulty. Accordingly, the Board finds that referral to the Director, Compensation Service is not warranted. As most of the evidence weighs against the claim (that is to say, it is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. Lynch, supra. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.