Citation Nr: 1648559	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  02-10 491	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to total disability based upon individual unemployability (TDIU) before July 12, 2007 on an extraschedular basis.


REPRESENTATION

Veteran represented by:	Arizona Department of Veterans Services


ATTORNEY FOR THE BOARD

Russell Veldenz, Counsel






INTRODUCTION

The Veteran served on active duty from January 1966 to August 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2014, September 2015, and May 2016, the Board remanded the case to the RO for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran originally applied for TDIU in September 2000.  In a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted TDIU effective July 12, 2007.  The Veteran contends he is entitled to a TDIU prior to that date.  


FINDING OF FACT

The Veteran's service-connected disabilities, consistent with his education and occupational experience, did not preclude him from securing or following substantially gainful employment prior to July 12, 2007.


CONCLUSION OF LAW


The criteria for a TDIU prior to July 12, 2007, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.16 (2016).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist a claimant in the development of a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).

VA must notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2016).  

The Veteran filed his TDIU claim in September 2000.  Notice was provided in June 2004.  While the notice did not precede the adjudication, the timing error was cured by content-complying notice after which the claim was readjudicated by a supplemental statement of the case, dated in October 2004.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007).

In addition, the Board finds that the duty to assist a claimant has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records.  Several VA examinations have been conducted and opinions obtained.  

Actions requested in the prior remands have been undertaken.  VA medical records and VA medical opinions were obtained.  A referral to the Director of Compensation for extraschedular TDIU consideration was made and the Director issued a decision.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

TDIU Prior to July 12, 2007

A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, due solely to impairment resulting from his service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the Veteran from securing or following a substantially gainful occupation.   A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  If the disability percentage requirements are not met, a TDIU can still be awarded on an extraschedular basis; however, the initial decision on such a claim must be made by VA's Director of Compensation Service.  38 C.F.R. § 4.16(b).  

The Veteran originally applied for TDIU in September 2000.  For the period in question, the Veteran was service connected for AE, rated as 40 percent disabling, prostatitis rated as 10 percent disabling before March 6, 2006 and as 40 percent disabling thereafter, and osteopenia, rated as zero percent disabling.  His total combined rating during this period was at most 60 percent.  The Veteran thus was not eligible for a TDIU on a schedular basis before July 12, 2007 since the he did not have a service connected disability at 60 percent or a disability at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R § 4.16(a).  He contends he should be awarded a TDIU on an extraschedular basis.  38 C.F.R. § 4.16(b).  In a January 2016 rating decision, the AOJ granted TDIU effective July 12, 2007.   

Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  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.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability).  The word "substantially" suggests an intent to impart flexibility into a determination of a Veteran's overall employability, as opposed to requiring him to prove that he is 100 percent unemployable.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

I. Facts

The Veteran has reported that constant use of medications for his AE, including Benadryl and Epinephrine, causes sleepiness, irritability, and nervousness.  In a July 2000 statement, he reported that because of his service-connected disabilities, his overall health had worsened to the point that he had been determined by the Social Security Administration (SSA) to be totally disabled, and that he could no longer perform activities that he used to do and should be natural for a person of his age such as softball, bike riding, exercising, walking long distances, or playing golf.  He also claimed that it was hard for him to take care of daily activities, such as personal hygiene, cooking, household duties, tying his shoes, controlling his bladder, and occasionally cleaning himself after defecating.  The Veteran also stated controlling his bladder was becoming extremely difficult.  

The Board's review of the medical record does not document any personal hygiene maintenance problems nor has the Veteran directly submitted any statements that he had trouble with his personal hygiene due to the skin condition.  As to prostatitis, his statements only refer to bladder leakage.  It appears the Veteran contends the disabilities caused emotional distress and depression that affected his performance of activities of daily living.  The Veteran was not service connected for any mental health disability before July 12, 2007.  In any event, he claimed that he was unable to secure and maintain gainful employment due to his AE.

The Board also notes that the Veteran has been determined to be disabled by the SSA.  However, none of the Disability Determination Reports show that he is disabled due to AE or prostatitis.  Further, the Board notes that in questionnaires, the Veteran points to low back symptoms as the reason for his disability and mentions other conditions such as carpal tunnel syndrome but never mentions AE or prostatitis.  The SSA medical evidence also discussed a back disability and the mental health symptoms resulting from the back disability.  They do not discuss AE or prostatitis.  The November 1998 treatment records from the SSA note that the Veteran's bowel and bladder control was normal.

The Veteran was afforded a VA examination in February 2001 for his AE and prostate disabilities.  The Veteran used self-injected adrenaline and Sus-Phrine when necessary and Benadryl when he has an attack.  He reported this treatment as effective.  When he has an AE attack, the attacks begin either with a gagging sensation and chest pain or actual hives which can be generalized.  In either case if he does not abort it quickly enough with an injection, it progresses to angioedema of the eyes, face, and lips with difficulty breathing.  The VA examiner concluded the Veteran's AE attacks did not rise to a life threatening degree since he has not been hospitalized for an AE attack in at least 12 years.  The full fledge symptoms eventually subsides but it can take from one to one and one half days.  He claims that because of these attacks he always uses up his medical leave plus perhaps extra time.  In addition, he asserted that he failed to get promotions and was generally hurting in the job market because of his appearance at work with residual symptoms.  The Veteran did not report any history of chronic prostate symptoms.  

In February 2001, the Veteran described his AE attacks to his caregivers as burning, pruritic, and diffuse, which then leads to urticaria and swelling mainly in his lips, eyes, and at times tongue, and difficulty swallowing.  The swelling can occur in his extremities as well.  There have not been any episodes of hypotension.  The Veteran has kept diaries for years but was unsure what causes an attack.  They are not associated with any patterns such as heat or cold, time of the day or activity.  

In May 2001, the Veteran complained of urine dribbling but no other genitourinary symptoms except erectile dysfunction.  

In July 2001, the Veteran reported AE attacks up to 2-3 times weekly with occasional good weeks without any AE attacks.  This did not represent any change in his prior pattern.  

The Veteran was afforded VA examination in October 2002 regarding his prostate disability.  He reported difficulty with urination which had become worse in the last couple of years with what seemed to be a restriction in the flow of urine.  The Veteran complained of a fair amount of urgency to urinate.  He did not use pads for urinary incontinence.  He urinated one to two times each night. 

In February 2003, the Veteran reported that his last severe AE attack occurred in January 2003, and required an emergency room visit, but subsided with Benadryl and Epinephrine. 

That same month, the Veteran reported to a VA social worker that he has been passed over for promotion or placed in unsatisfactory positions in past jobs due to the AE.  When the attacks struck with the hives and swelling he had to leave work because he felt or looked so bad.  Consequently, he missed a lot of time.  In several of his jobs, the Veteran stated employers terminated him due to excessive absences and also placed him into positions where he would not have contact with the public. His jobs frequently called for him to be present before the public and he had to maintain a schedule.  His attacks prevent this as his face severely swelled affecting his facial features.  His throat and tongue would also swell and speech was slurred.  The Veteran asserted an AE attack affected internal chest muscles around his heart and cause severe discomfort and pain.  

During a VA examination in March 2003, the Veteran reported that he handled ninety nine percent of his episodes of AE himself with Epinephrine injections and Benadryl.  The VA examiner's review of allergy records indicated that the Veteran had one or two episodes a week which corresponded to the Veteran's account of having frequency varying from every two days to every three or four days.  The Veteran's history at the examination, however, implied somewhat more frequent attacks.  The Veteran reported that urticarial lesions appeared on any part of the body, and that angioedema could occur on the feet, hands, lips, or throat but without a life-threatening respiratory obstruction.  

The examiner explored with the Veteran how AE affected his employment.  The Veteran stated that at one time he was in charge of all the computers in Arizona high schools.  He had to travel and speak in public at the high schools.  According to the Veteran, this became increasingly difficult because of the unpredictability of the hives and angioedema and difficulty appearing in public.  His job responsibilities were gradually decreased and eventually he was transferred to data management which did not require public appearances.  He seemed to indicate that the hives interfered even with data management and that he was then placed in a job where he did essentially nothing.  At some point thereafter the state laid off workers and he has not worked at all in three years.  The Veteran apparently has not tried to find other work since that time. 

With regard to the impact of the Veteran's AE on his employment, the examiner concluded that it would not completely prevent him from securing and maintaining some type of employment, acknowledging that it clearly affected some of the past specific job requirements such as travel and speaking engagements.  

In December 2003 the Veteran complained of chronic urination with a small amount of leakage but recurring frequency.  He had occasional dysuria.  

In a February 2005 VA mental health examination, the examiner noted his review of the medical evidence did not demonstrate treatment for AE or an AE diagnosis although he talked about having episodes with the nurse practitioner.  When asked about his employment history, the Veteran said that his evaluations had been perfect but that he was discriminated against and that he was railroaded out suddenly and inexplicably when his perfect evaluations became critical.  The Veteran said that he has applied for other jobs since 1998 but he has been turned down.
 
VA treatment records dated since September 2004 document the Veteran's visits to the allergy clinic on a regular basis for reported anaphylaxis/urticaria treatment.  However a close review of these records show there were no active symptoms at the time of the clinic visits.  Each time he reported to the VA staff that he had an episode either just days before or in the previous two weeks involving the face, lips, and hands as well as hives.  He also felt his symptoms affected his insides as well He reported frequent use of an EpiPen to administer epinephrine (reported as 2-3 times a week in a June 2005 treatment note).  Nevertheless, the Veteran reported there had not been any change in severity or frequency of symptoms.  In January 2005, the Veteran reported that that he often felt tired during the day due to use of the medication he used as needed

VA treatment records dated from September 2004 to November 2006 are absent evidence of objective findings of urinary incontinence or the use of absorbent materials.  Nor are there subjective reports of problems with urinary frequency or retention.  A September 2006 VA nursing note written at the time of the Veteran's hospitalization for a right shoulder infection reports the Veteran was not incontinent of urine or stool.

The Veteran was afforded a VA dermatology examination in February 2006.  He reported an episode of AE 1-2 times per week, which he treated with Benadryl and an EpiPen.  He also reported going to emergency rooms when his medications did not work, including an emergency room visit in Las Vegas in August or September 2005 and emergency room visits to local medical centers about 2-3 times per year.  At the time of the examination there was no evidence of urticaria or edema. 

The examiner also noted the angioedema episodes had not been substantiated by VA treatment records, and that the Veteran has not been seen at the VA Medical Center or hospital for any episodes.  In addition, no records from outside treatment facilities had been shown to the VA staff or otherwise provided to VA.  All available information regarding the Veteran's AE episodes came from his reported history.  Based solely on the Veteran's reported history, the February 2006 VA examiner concluded that the Veteran had debilitating hives despite immunosuppressive medications but the condition had been stable.

The Veteran was afforded VA examinations in March 2006.  He reported frequency of daytime voiding as 1 to 2 hours and voiding 5 or more times per night.  He also reported frequent urgency, hesitancy starting the stream, which was a weak or intermittent stream, and straining.  He also complained of frequent dribbling, occasional dysuria, and urinary incontinence.  The VA examiner determined the condition was stable.  

Turning to the AE disability, an allergy/immunology VA examiner recorded the Veteran experiencing about 2-3 episodes per week for which he uses epinephrine and Benadryl.  During the episodes, he experiences hives, itching, pain, and an abnormal sensation.  The condition was stable.  While debilitating and unresponsive to treatment, there were no systemic symptoms associated with AE.  The examiner stated any effects on daily activities were mild for exercise, sports, and shopping and moderate for chores.  Regarding the debilitating effect of the AE, the examiner stated chronic hives are very aggravating for some patients.  From the chart history, it appeared he has had severe enough episodes to warrant extensive evaluation and treatments with potential side effects.  This lead the VA examiner to conclude that hives negatively impacted him to the point of this treatment and side effects but unfortunately the Veteran also seemed to have some affective disorder which exacerbated his medical disease and vice versa.  

Also in March 2006, the Veteran reported to his mental health provider that his genitourinary symptoms, especially leaking urine, are humiliating for him.  

In May 2006, the Veteran reported AE episodes bouts about 3-4 times a week in which lips swell and tongue as well along with hives but the following month, he reported bouts of AE a couple times each week.  

In September 2006, while at VA for treatment of a right shoulder condition, it appears that the Veteran had the Veteran had at least one AE attack but was not at risk for respiratory failure.

Also November 2006, the Veteran reported visiting a friend in Nebraska and enjoyed hunting and fishing there.  He wanted to begin learning about archery.  In January 2007, he stated he was about to enter a bass tournament.  

In November 2006 and February 2007, the treating VA allergy/immunology specialist reviewed the Veteran's history of angioedema/urticaria with failed use of multiple antihistamines and steroids as the Veteran reported continued AE attacks.  Past photos provided to the allergist revealed a questionable mild or slight angioedema involving lips.  The physician noted that the Veteran never physically had the findings consistent with severe angioedema and/or airway compromise.  There has not been any other evidence to date of true anaphylaxis.  All lab tests have been negative and examination of the Veteran that day was normal without eruptions or swelling of the skin.  His assessment was angioedema/urticaria but he was unsure that the Veteran had true anaphylaxis bouts needing epipen.  At this time, he recommended a second opinion but the Board's review of the record does not establish that a second opinion was obtained.

In September 2015, the Board found that the evidence did not show that the Veteran had the symptoms required for a rating in excess of 10 percent before March 6, 2006 or in excess of 40 percent thereafter for his prostatitis disability.  The Veteran already had the maximum rating for AE.  The Board also determined that for the period before July 12, 2007, the Veteran's disabilities were manifested by symptomatology contemplated by the rating criteria, even including its effect on employment.  Further, Veteran has not reported any symptoms or factors outside of those contemplated by the rating schedule.  Accordingly, the Board found that a referral for an extraschedular rating for either his service-connected AE or prostatitis was not warranted. 

The Board, however, remanded the Veteran's claim for a retrospective opinion on employability for the period before July 12, 2007.  The evidence submitted by the Veteran indicated the Veteran's disabilities caused him distress and humiliation.  The Board therefore also directed the Veteran's TDIU claim be referred to the Director for Compensation Purposes for extraschedular consideration on the issue of entitlement to TDIU before July 12, 2007.

The AOJ obtained the opinion and an addendum in October 2015.  The examiner concluded it is at least as likely as not, that the functional impairment caused solely by his service-connected disabilities in combination, preclude the Veteran's ability to obtain and maintain substantially gainful employment consistent with his education and occupational experience.  The examiner based it upon the disabilities of AE, prostatitis, osteopenia of the hip and depressive disorder NOS and also relied upon medical evidence dated after July 12, 2007, which discussed symptoms and their severity current at the time written.  

The AOJ then referred the TDIU claim to the VA Director for Compensation.  The Director denied a TDIU on an extraschedular basis in January 2016 concluding the Veteran's occupational difficulties do not completely prevent him from securing and maintaining some type of employment.  The totality of the evidence did not show that the Veteran is unemployable under any circumstances because of service-connected conditions.  

The Director noted the VA examiner who provided the retrospective opinion concluded the Veteran was entitled to a TDIU before the effective date in 2007 relied upon conditions that have never been previously service connected or were not service connected before July 12, 2007 ("no medical differentiation is shown by evidence of record between the service-connected and non-service connected disabilities.").  

The Board in May 2016 found that while the October 2015 retrospective opinion concluded a TDIU before July 12, 2007 was warranted, it relied upon incorrect factors, e.g., non-service connected disabilities or disabilities that have never been service connected for the TDIU opinion.  The opinion also relied upon medical evidence occurring long after July 12, 2007.  It therefore remanded the Veteran's claim again in May 2016 for a new retrospective opinion.  The Board notes parenthetically that it has assigned no probative weight to the October 2015 retrospective opinion and addendum because it is supported by factors and medical evidence not relevant to the current issue before the Board.

In July 2016, a VA examiner reviewed the Veteran's file to determine if the Veteran was unemployable before July 2007 due to the service connected disabilities of AE, prostitis and hip osteopenia.  These are the only three service connected disabilities before July 2007.  The examiner noted as to AE that the Veteran had 2-3 episodes a week but the Veteran self-medicated the episodes (that is, used the Benadryl and the Epinephrine prescribed to him by his caregivers when he had an AE attack) and the record does not establish any hospitalizations.  The VA examiner also noted that by June 2007, the Veteran's caregivers questioned whether the Veteran even had AE.  As a result, the Veteran's AE would have minimal impact on the functional effects on employment.  He is able to self-medicate which would require a place to take his medication with appropriate break in duties (20 minutes) and clinic notes establish at most these episodes occur two to three times a week.  The VA examiner also determined prostatitis did not have any restricted functional effects on employment.  Similarly, noting a lack of evidence of radiographic or bone density scan documenting osteopenia, the Veteran's service connected osteopenia of hip did not have any restricted functional effects on employment. 

II. Analysis

In October 2015, the Board remanded the Veteran's claim for TDIU on an extraschedular basis and directed the claim be referred to the Director of Compensation Service for extraschedular consideration.  The Director denied a TDIU on an extraschedular basis in January 2016.  Although the Board must refer an extraschedular TDIU to the Director in the first instance, the Board reviews entitlement to extraschedular TDIU thereafter on a de novo basis.  Kuppamala v. McDonald, 27 Vet. App. 447 (2015).

As noted, a veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 

However, to prevail on the his claim for TDIU, the record must reflect that he was precluded from engaging in substantially gainful employment consistent with his education and occupational experience, but not to age or to impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  Additionally, prior unemployability status must be disregarded when determining whether a veteran currently is unemployable.  38 C.F.R. § 4.16(a).  The sole fact that the Veteran was unemployed or has difficulty obtaining employment is not enough.  A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether he can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The AE disability, rated at 40 percent, the prostatitis disability, rated at 10 percent and later 40 percent, and the hip osteopenia, rated as noncompensable, are the only service-connected disabilities prior to July 12, 2007, and the ratings do not meet the schedular criteria for a TDIU.  See 38 C.F.R. § 4.16(a).  Thus, the question now before the Board is whether the Veteran is entitled to an extraschedular TDIU due to AE, prostatitis, and hip osteopenia before July 12, 2007.  See 38 C.F.R. § 4.16(b).  

The Veteran has submitted several statements regarding the effects his disabilities have had upon his employment, especially AE.  The Board finds that the Veteran's statements are competent evidence regarding the impact of his service-connected disabilities on his occupational functioning.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  In this regard, the medical evidence of record supports his reports concerning symptomatology associated with his service-connected AE, including emergency room visits and limitation of occupational functioning such as appearing in public.  

Nevertheless, the evidence is against a finding that the Veteran was unable to follow substantially gainful employment due solely to his service-connected disabilities, prior to July 12, 2007.  Despite his ER visits and difficulty performing in a job due to AE symptoms, the Veteran actually worked up until he injured his back in September 1998.  This suggests that he was able to work even with his AE, prostatitis, and osteopenia and contradicts his assertion that he was not able to do so.  In a similar manner, the Board notes the Veteran's service-connected disabilities did not prevent him from travelling out of state to engage in activities such as hunting and fishing or learning a new sport, archery.  These activities also suggest an ability to work and again contradict his assertions of unemployability.  Finally, the Board finds the evidence reflecting disability and limitations prior to July 12, 2007 reflects that the Veteran had to limit his public appearances, but not that his AE or other service-connected disabilities prevented him from engaging in work that could be done in private.  The Veteran not only has a college degree, but has a degree involving computers, a field that the Board finds includes a variety of different work environments to include work outside the view of the public or even other co-workers.  

The Board acknowledges the Veteran's numerous reports of employment problems due to the side-effects of the AE medication he takes for his skin disorder, including sleepiness, irritability and nervousness, as well as the negative effects his reported swelling of the face has on his appearance (lost time/absences and limitations on appearing in public).  Nevertheless, the Board has placed great probative weight upon the July 2016 VA examiner's review and conclusions of the effect of the Veteran's AE, osteopenia, and prostatitis on his ability to work.  Reading the report as a whole, the Board finds the VA examiner concluded that his disabilities, considered separately or combined, may have limited but did not prevent him from working before July 12, 2007.  Furthermore, his primary treating physician also has not determined that the skin disorder is disabling, and instead has found that it is only mild in severity.  In a similar manner, the Veteran has not provided any evidence from his former employers regarding the effect his AE, prostatitis, or osteopenia had on his job performance.   

To the extent that the Veteran's service-connected disabilities caused him to miss time at work or hindered his ability to obtain or maintain gainful employment, the rating schedule already contemplates industrial impairment and considerable time lost from work based on his service-connected disability rating of 40 percent for AE and the ratings for his other service-connected disabilities.  Stated another way, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability.  See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"); see also Van Hoose v. Brown, 4 Vet. App. at 363 ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.").  If the Board were to accept the Veteran's argument that evidence of occupational limitations due to a service-connected disability or disabilities necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised and warranted in every case where a Veteran challenged the assigned evaluation.  

Furthermore, after a review of the record, the evidence shows the Veteran has not worked since 1999 after a September 1998 injury to his back.  This has resulted in ongoing severe symptoms such as pain and required surgery for a herniated disc.  The Board notes the Veteran, when filing his claim with the SSA, cited the back injury, not AE, hip osteopenia, or prostatitis, as the reason he is incapable of employment.  SSA also appears to have awarded benefits based upon the back disability and associated mental health conditions without mentioning of AE, hip osteopenia, or prostatitis as factors.  Nevertheless, the Board has considered entitlement to TDIU based only upon his disabilities that were service connected before July 12, 2007.  As discussed above, the service connected disabilities may have impacted his ability to obtain and maintain employment, but did not prevent it.

In sum, the Veteran has presented evidence of occupational limitation, not an inability to secure and maintain employment.  The Board sympathizes with the Veteran recognizing his AE has had a notable and significant effect on his employment capabilities.  AE and perhaps prostatitis limited his interaction with the public and possibly co-workers, and affected (but did not prohibit) travel.  Finally, it appears the AE caused lost time, but the evidence demonstrates that mainly ties in with his inability to interact with the public and co-workers.  Nevertheless, for the reasons expressed above, the occupational function is only limited and did not result in total unemployability 

The other evidence of record, including the medical records and the opinions from the VA examiner suggest that his disabilities remained stable with a severity that supports ratings assigned for the applicable period.  Thus, the Board finds that entitlement to TDIU is not established.  The Veteran had the physical and mental capabilities required for and was able to work, despite his AE, hip osteopenia, and prostatitis disabilities.  To the extent that the Veteran has stated the disabilities were worse in the years in question, the Board finds that assertion is competent but is outweighed by the medical records which are objective and consistent.  In fact, the Board notes only one hospital ER visit documented during the period in question.  Otherwise, his condition was stable enough that he was followed by a doctor on an outpatient basis, even at times when the Veteran was not working.  

Based upon all of the foregoing evidence, the Board concludes that the Veteran's service-connected disabilities before July 12, 2007 did not prevent him from securing or following a substantially gainful occupation, consistent with his education and occupational experience, either separately or combined.  While the AE had a significant functional impact upon employment, it still allowed the Veteran to function in the right environment, which the Veteran was apparently able to do in the computer business until his non-service connected back injury.  There is no evidence that his prostatitis or hip osteopenia limited his work to the degree required for a TDIU.  The Board concludes that the criteria for TDIU on an extraschedular basis before July 12, 2007 have not been met. 


ORDER

Entitlement to a TDIU prior to July 12, 2007, is denied.



____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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