Citation Nr: 18160514
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 08-33 740
DATE:	December 26, 2018
Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.
The Veteran’s service-connected disabilities do not render him unable to secure and following a substantially gainful occupation, considering his educational and occupational history.
The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19.
The Veteran served on active duty in the U.S. Army from May 1975 to September 1978.
This appeal to the Board of Veteran’s Appeals (Board) arose from a derivative TDIU claim from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In that rating decision, the RO denied entitlement to increased ratings for left ulnar nerve damage with painful elbow extension, status post fracture of left medial epicondyle, and loss of use of left foot (previously rated as left distal fracture, left midshaft tibia fracture with deformity, and left foot degenerative changes of first metatarsophalangeal).  In the May 2015 Informal Hearing Presentation (IHP), the Veteran, through his representative, contended that his disabilities caused him to be unemployable.  Thus, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board found that the evidence raised a TDIU claim due to the service-connected disabilities on appeal and included it in his appeal. 
The Board should acknowledge that the Veteran had previously filed two claims for TDIU, in June 2003 and February 2013. The RO denied those claims in December 2003 and September 2014 respectively.  The Veteran did not file a timely appeal of those decisions. 
In the July 2015 Board decision, the Board remanded the TDIU claim for further development, specifically to obtain a VA medical opinion to determine the functional impact of the Veteran’s service-connected disabilities on his ability to work.  In the January 2018 Board decision, the Board remanded this claim for additional development to obtain an addendum opinion regarding conflicting medical evidence.  That development has been completed, thus the claim is now ready for appellate review. 
Total Disability Rating based on Unemployability (TDIU)
A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 
Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b).
The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.
For a Veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. 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.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).
1. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities
The TDIU claim at hand was inferred as a part of the Veteran's appeal of a higher rating for loss of use of left foot and left ulnar nerve damage with painful elbow extension.  See Rice, 22 Vet. App. at 454.  As such, a Rice TDIU claim is limited to whether the Veteran is unemployable due to the underlying service-connected disabilities on appeal.  See id., at 454-455.
In order for the Veteran to be eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16, the Veteran’s disability rating must meet the schedular criteria.  In this case, the Veteran is service-connected for loss of use of left foot, rated at 40 percent disabling effective July 7, 2011; left ulnar nerve damage with painful elbow extension, status post fracture of left medial epicondyle, rated at 20 percent disabling effective November 14, 2006; left ulnar nerve damage, rated 20 percent from November 1, 2008, to December 1, 2014; and fracture of the medial epicondyle, rated 10 percent from July 19, 2002, to December 1, 2014.
As such, the Veteran does meet the schedular criteria for a TDIU rating under § 4.16(a), at least for the period from February 2013 (the date the Veteran last worked) to November 30, 2014.  The Veteran does not meet the schedular criteria for a TDIU rating under § 4.16(a) for the period from December 1, 2014.  Nevertheless, the Board must consider whether the evidence otherwise warrants a referral to the Director of Compensation Service for entitlement to a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. 4.16(b).
Turning now to the evidence of the record, on an August 2007 VA examination, the Veteran stated that he worked for the postal service as a letter deliverer and has a driving route.  It takes him 2 ½ hours of standing “to get his route ready”.   During this time, the Veteran experiences extreme pain from standing and takes Ibuprofen to ease the pain.
In a December 2010 VA treatment record, the Veteran noted that his left elbow nerve pain was worse when he was working on the job.
In a statement dated January 2011, a postmaster from the Veteran’s job stated that he observed the Veteran for over a year. He expresses that he noticed a decline in his performance and that the Veteran struggles each day to complete his tasks, which mostly consist of standing and dismounting from his vehicle.
In a February 2011 VA examination, the Veteran asserted that stairs, twisting, squatting, lifting, prolonged sitting greater than 30 minutes, standing greater than 8 minutes, and walking greater than 30 minutes all are aggravating due to his conditions.  Uneven ground is very aggravating as the Veteran would experience quick jolts of pain, making it hard for him to complete yard work.  The VA examiner opined that the Veteran’s daily living activities are unaffected.  At the time he was managing his employment, although missing ten days of work.  The examiner concluded that based on the objective findings, the Veteran would be better suited for employment that required more sitting and little physical activity. 
On the March 2013 VA 21-8940, formal application for TDIU, the Veteran noted that he worked as a letter carrier from October 1990 to February 2013.  He noted he left his job because of his disabilities.  He states that he has applied to over 60 jobs, ranging from fast food to UPS.   He notes that he has not had an interview with, or a call from any of those jobs.  The Veteran has completed up to two years of college.  
On a July 2013 Social Security Administration (SSA) functional report, the Veteran’s wife reported that the Veteran was very limited to the amount of time he could stand or walk.  She further stated that his arm and shoulder pain limits how much and how high he can lift objects.  She notes that the Veteran does some chores around the house such as vacuuming, loading and unloading the dishwasher, cleaning the table and counters, doing laundry, and mowing the lawn. He also reads his newspaper, and does crossword puzzles.  She stated that he like to exercise and will take a walk or ride his bike.  He also watches their grandson sometimes. They have two cats, which the Veteran feed and cleans their litter box.  The Veteran himself noted the same sentiments as his wife regarding the impact of his disabilities.  He does indicate that it takes him longer to complete yard work due to his disabilities. The Veteran states that he feels pain dressing and bathing. He states that his disabilities have impaired his abilities to play sports, but hasn’t affected much his ability to read newspapers and fill out crossword puzzles due to the less physical activity required.  The Veteran expresses that his depression affects his abilities as well.   The Board should note that the Veteran is not service-connected for depression. The Veteran also contends that he has difficulty concentrating, which he contributes to tinnitus, medication, and pain. The Board notes that the Veteran is not service-connected for tinnitus.  In its Disability Determination Explanation, SSA determined the Veteran to be disabled. It was also noted that the Veteran was able to sit, with normal breaks, for about six hours in an eight-hour work day. 
In an August 2014 VA examination, the examiner opined that his service-connected left elbow disability did not impact his ability to work. It was also noted that his elbow pain had gotten better after retiring from his job.  The pain increases while lifting, carrying, or resting elbow on desk or chairs. 
In the June 2017 VA examination, the examiner noted that it was not expected for the Veteran to be able to stand walk, lift, or carry.  His left elbow condition does not stop the Veteran from working, since he was able to use his opposite arm.  The examiner opined that the Veteran would be able to perform less physical activity.
In the February 2018 examination, the examiner reviewed the “conflicting medical evidence” regarding the February 2011 examination where it was noted that the Veteran experienced pain with prolonged periods of sitting.  The examiner stated that the Veteran is not expected to continue as a mailman due to the pain caused by standing and walking.  Lifting was also not tolerated due to the Veteran’s disabilities.  However, the examiner opined that the Veteran is not limited to work that requires less physical activity, due to the fact he was able to use his uninjured elbow at work.  Sitting for long periods is not limited in his disabilities of the feet or elbows.
Based on the evidence of the record, there is no showing that the Veteran’s service connected disabilities preclude him from obtaining or retaining substantially gainful employment.  The fact that the Veteran has applied to “over 60 jobs” and has not been called back for an interview may not be used as a basis for a total disability rating.  See 38 C.F.R. § 4.19.  The Board acknowledges that the evidence shows that the Veteran is precluded from engaging in any activity that involves lifting, carrying, and standing for long periods of time.  However, the Veteran is not precluded from engaging in any activity that involves sitting or minimal physical activity.  Regarding the “conflicting medical evidence” concerning whether the Veteran’s assertion that sitting for longer than 30 minutes was limited because of his conditions, the February 2011 examiner noted that after examination and reviewing the objective findings, the opinion was that the Veteran was suitable for work that involves sitting.  The VA examiners noted that the Veteran was able to use his right arm when he felt pain in his left arm.  With regards to concentration difficulties, the Veteran and his wife noted that he drives a car as a mode of travel. The Veteran was noted as still completing chores around the house and completing crossword puzzles and reading the newspaper.  The Veteran completed two years of college.  The Board finds that the evidence does not show preclusion of employment due to the Veteran’s educational level or past employment.  Rather, this evidence shows that, while the service-connected disabilities of the right foot and left arm do have an adverse impact on his physical capabilities, the Veteran is still nonetheless capable of performing the mental and physical acts required by employment.
Therefore, as the Veteran’s service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation consistent with his education and occupational history, the criteria for a TDIU rating, including referral for extraschedular consideration, are not met.

Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Syesa Middleton, Associate Counsel 

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