Citation Nr: 1800825 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-01 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an extraschedular rating for degenerative joint disease of the lumbosacral spine. 2. Entitlement to an extraschedular rating for residuals of left hip injury with trochanteric tendonitis and bursitis (left hip disability). 3. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1976. These matters come before the Board of Veterans' Appeals (Board) from rating decisions issued in April 2010 and September 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The April 2010 rating decision granted service connection for a back disability and a left hip disability, effective April 27, 2005. The September 2011 rating decision denied the claim for TDIU. In February 2015, the Board issued a decision which granted an increased initial rating of 20 percent from May 2010 for the Veteran's back disability, denied a rating in excess of 10 percent for the Veteran's left hip disability and remanded the Veteran's claim for TDIU for further development. The Board is satisfied there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran appealed the Board's February 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2015, the Veteran's counsel and VA submitted a Joint Motion for Partial Remand (JMR) that requested that the court vacate, in part, and remand the Board's decision to the extent that the Board failed to provide sufficient reasons and bases in denying extraschedular ratings for the Veteran's back disability and left hip disability. The Board remanded these issues in June 2016 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall, 11 Vet. App. at 268. A Supplemental Statement of the Case (SSOC), issued by the RO in July 2017, continued to deny a rating on an extraschedular basis for the Veteran's back disability and left hip disability and entitlement to an extraschedular TDIU rating. FINDINGS OF FACT 1. The schedular criteria contemplate the Veteran's impairment resulting from the service-connected degenerative joint disease of the lumbosacral spine. 2. The schedular criteria contemplate the Veteran's impairment resulting from the service-connected residuals of left hip injury with trochanteric tendonitis and bursitis. 3. The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow any form of substantially gainful employment due to the Veteran's service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for referral for an extraschedular rating for degenerative joint disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for referral for an extraschedular rating for residuals of left hip injury with trochanteric tendonitis and bursitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5252 (2017). 3. The requirements for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b) (2107). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor the representative has 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 duty to assist argument). Additionally, the Board finds there has been substantial compliance with its remand directives. The Veteran's claim for entitlement to TDIU was referred to the Director of VA's Compensation and Pension Service for extraschedular consideration in July 2017, and a July 2017 SSOC continued to deny entitlement to an increased rating on a schedular basis for a back disability and a left hip disability as well as entitlement to TDIU. Based on the foregoing, the Board finds the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall, 11 Vet. App. at 268. Therefore, the Board will proceed to review and decide the claims based on the evidence of record. II. Extraschedular - Back and Left Hip Disabilities The Board has considered whether the case should be referred for extraschedular consideration. An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Specifically, the Court stated the determination of whether a Veteran is entitled to an extraschedular rating under § 3.321 is a three-step inquiry. First it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated there must be a comparison between the level of severity and the symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the Veteran's disability level and symptomatology, the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. In regard to the Veteran's left hip disability and back disability, the Veteran has reported similar symptoms. At a November 2004 VA examination, the Veteran reported pain and stiffness in his hips and an inability to walk long distances. The examiner noted a slight limp. At an April 2006 VA examination, the Veteran noted stiffness and pain in his lower back, causing him to have difficulty walking, standing, and sitting for extended periods of time. The Veteran also noted that his back disability prevented him from heavy lifting. The Veteran reported that he used a cane and a back brace to alleviate his symptoms. VA treatment records from 2006 to 2008 are consistent with these symptoms. During that time, the Veteran had steroid injections in his back and left hip to alleviate pain symptoms. Additionally the preponderance of the evidence indicates no hospitalization, surgery or periods of incapacitation due to the Veteran's back disability or left hip disability. The Veteran attended VA examinations in July 2010 and May 2011. The Veteran continued to report weakness, tenderness, pain, abnormal gait, stiffness, and limited range of motion in his lower back and left hip at both of these examinations. He also continued to report difficulty walking or standing for long periods of time. The Veteran reported no periods of incapacitation, hospitalization, or surgery related to his back or left hip disabilities. The Veteran reported he continued to use a back brace to manage his symptoms. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an extraschedular rating for either disability. The Veteran's symptoms related to his left hip and spine disabilities are contemplated under the schedular criteria and, therefore, the evidence does not present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The reasons for this determination follow. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. The Veteran's back and hip disabilities have manifested in painful and stiff movement, tenderness, abnormal gait, and limitation of motion due to pain, including flare-ups that exacerbate these symptoms, resulting in difficulty walking, standing, or sitting for extended periods of time and difficulty with heavy lifting. The schedular criteria for rating back and hip disabilities specifically provide for ratings based on the presence of painful motion, limitations of motion, including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011)); and other clinical findings such as guarding, and abnormal gait. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); DeLuca, 8 Vet. App. at 206-07 (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the Veteran's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell, 25 Vet. App. at 33-36 (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, and 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell, 25 Vet. App. at 45, n. 2; Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a disability is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments). Stiffness is considered as similar to pain or painful motion, as it similarly limits motion; such limitation has also been considered in assigning the schedular rating. To the extent that feelings of weakness and giving way are due to pain or other orthopedic factors, such limitation has been considered in the schedular rating. Finally, to the extent that pain, lack of endurance, or another orthopedic factor has caused the Veteran's reduced mobility, to include prolonged walking, these symptoms and impairment are part of the schedular rating criteria that are applied in rating hip disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 32. The schedular rating criteria for musculoskeletal disabilities specifically include tenderness. 38 C.F.R. § 4.71a. Such symptoms and impairment are part of or similar to symptoms listed under the schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria). Interference with sitting, walking, lifting, and standing are also considered as part of the schedular rating criteria under 38 C.F.R. § 4.45. To the extent that these symptoms cause incidental pain in the hip and spine, such pain, is considered as part of the schedular rating criteria because orthopedic DeLuca factors and 38 C.F.R. §§ 4.40, 4.45, and 4.59 factors are incorporated into the schedular rating criteria as applied to a particular diagnostic code. See 38 C.F.R. § 4.71a; Schafrath, 1 Vet. App. at 589 (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Burton, 25 Vet. App. at 4 (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers, 27 Vet. App. at 472 (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the Veteran's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell, 25 Vet. App. at 33-36 (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, and 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). The Board acknowledges the private medical opinion submitted by the Veteran in April 2016. This opinion continued to note the Veteran's complaints of constant back and left hip pain with difficulty walking and standing for extended periods of time. The private examiner opined that the Veteran's back and left hip disabilities presented an exceptional disability picture, but the examiner does not note any symptoms other than the symptoms addressed above and the Veteran's inability to continue performing in a construction job, or other labor-intensive employment, that creates an exceptional disability picture. Having failed the first prong of the Thun analysis, a referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. Thun, 22 Vet. App. at 116. The Board also notes that under Johnson v. McDonald, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple disabilities in an exceptional circumstance where the evaluation of the individual disabilities fails to capture the collective impact of all the service-connected disabilities as they are experienced together. Johnson, 762 F.3d 1362 (Fed. Cir. 2014). The Veteran is service-connected for a back disability, a left hip disability, tinnitus, and bilateral knee degenerative joint disease (bilateral knee disability), and he contends that the collective impact of his back disability, left hip disability, and bilateral knee disabilities create an exceptional disability picture. The Board finds the Veteran's symptomatology is contemplated by the schedular criteria for the Veteran's service-connected disabilities and does not create an exceptional disability picture warranting an extraschedular rating. As noted above, the Veteran's pain, limitation of motion, inability to sit, stand or walk for extended periods of time, abnormal gait, and inability to engage in heavy lifting as they relate to his back disability and left hip disability have been compensated under the schedular criteria. He has separate 10 percent ratings for each knee, which contemplates the musculoskeletal symptoms he experiences in each knee. Accordingly, the Veteran does not present with an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple disabilities. See id. III. TDIU A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a Veteran is unemployable 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; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a 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 educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing 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). The Veteran is service connected for a back disability at a 20 percent rate from April 27, 2005; a left hip disability at a 10 percent rate from April 27, 2005; tinnitus at a 10 percent rate from June 12, 2008; right knee degenerative joint disease at a 10 percent rate from May 12, 2010; left knee degenerative joint disease at a 10 percent rate from May 12, 2010; and noncompensable bilateral hearing loss. The Veteran's combined rating for compensation purposes is 30 percent from April 27, 2005; 40 percent from June 12, 2008, and 50 percent from May 12, 2010. As the Veteran does not have a total combined rating of 70 percent, the schedular criteria have not been met for TDIU. Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran has submitted three VA Forms 21-8940, Veteran's Application for Increased Compensation Based on Unemployability beginning in 2005. In the 2005 applications (he submitted two applications that year within one month of each other), the Veteran indicated that his left hip and depression and hips and depression prevented him from securing or following any substantially gainful employment. In the 2011 application, the Veteran wrote that his back and left hip prevented him from working. The Veteran consistently wrote he became too disabled to work in June 2003 as a laborer. He reported he completed high school and had training as a clerk while he was in service for three years. In the 2011 application, the Veteran reported he completed a six-month training course for welding. In the April 2016 private opinion, the examiner wrote that the Veteran finished his trade school training for both welding and for being an auto mechanic. He also took some classes in carpentry and for becoming an electrician. In a November 2004 Family Assistance Department Medical Examination Form, a VA examiner entered diagnoses of major depression-recurrent and substance abuse in sustained remission and circled "Yes" to the question of whether this condition prevents the patient from working and when asked if the patient was able to work at this time, the examiner circled "No." The examiner was asked if medically disabled to please give an approximate length of time the patient could return to work, and he responded, "Will not be able to be employed gainfully." The Veteran's brother, R.C., in a statement submitted in June 2006, noted the Veteran had several jobs after service, but was unable to get permanent work because of his disabilities. The Veteran's neighbor, R. P., also reported in a June 2006 statement that the Veteran had not been working because of his disabilities. Other lay statements essentially provide the same facts. At a July 2010 VA examination, the examiner opined, after a thorough review of the Veteran's back, hip, and knee disabilities, that the Veteran's service-connected disabilities prevented manual labor but would not inhibit routine, sedentary work. A May 2011 VA examination report shows that the examiner physically examined the Veteran's knees, left hip and low back disabilities. The examiner noted that these disabilities limited the Veteran's walking and standing severely, but that they would have no effect on sedentary activities. The Board notes that the Veteran receives Social Security Administration (SSA) disability benefits, which he applied for based on back, hips, knees, and mental health disabilities. The SSA decision, in granting benefits, noted that the Veteran had the residual functional capacity for sedentary work, but determined the Veteran's mental limitations impeded the ability to complete a full day or week of work. The Veteran submitted a private medical opinion in April 2016. This examiner opined that prior to 2003 the Veteran was only able to work construction part-time due to his disabilities, and since June 2003, the Veteran was unable to work in labor-intensive employment-noting the Veteran's inability to walk or stand quickly or for long periods of time. The examiner indicated that individuals with significant lumbar disabilities are more comfortable when they have complete freedom with respect to sitting, standing, or walking. He concluded that the Veteran was unable to secure or follow a substantially gainful occupation, to include sedentary employment. As noted above, the Board previously remanded this matter for referral to the Director of Compensation Services (Director) of an extraschedular TDIU. In July 2017, the Director denied TDIU on an extraschedular basis. The Director specifically noted SSA records that found the Veteran had the residual functional capacity for sedentary work, and it was his mental limitations, which are not service-connected, that rendered the Veteran unable to maintain substantially gainful employment. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against entitlement to a TDIU rating. The SSA records indicate that the Veteran listed the following conditions as limiting his ability to work: depression, hip condition, back condition, and neck condition. Two of these disabilities, depression and neck condition, are not service connected, and the fact that the Veteran used non-service-connected disabilities to claim disability benefits tends to show that the Veteran did not believe his service-connected disabilities alone prevented him from working. As noted above, when the Veteran submitted his two 2005 TDIU applications, he included depression as a disability that prevented him from working, which, again, is not a service-connected disability. Thus, on three applications for disability benefits, the Veteran included at least one disability that is not service connected in alleging he could not work. This tends to show that the Veteran himself did not believe that his service-connected back and left hip disabilities (or other service-connected disabilities, none of which he listed on either the SSA or VA applications) alone prevented him from securing or following a substantially gainful employment. In awarding the Veteran SSA disability benefits, the Administrative Law Judge listed five "severe impairments" that it found caused the Veteran significant limitation in his ability to perform basic work activities, which included depression, substance abuse, chronic cervical strain, and status post injuries to the lumbosacral region and hips. Three of the five disabilities listed by SSA are not service-connected disabilities, and the Veteran is service connected for the left hip only (SSA has hip as plural, which would appear to indicate both hips). As to the Veteran's psychiatric disorder, SSA determined that it caused moderate restriction of activities of daily living, moderate difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence, or pace. The Administrative Law Judge determined that the Veteran had the residual functional capacity for sedentary work. However, the Administrative Law Judge determined that the Veteran's marked mental limitations included a marked limitation on the ability to complete a workday or a workweek without interruptions from psychologically based symptoms. This finding is in agreement with a November 2004 finding by a VA examiner, who found that the Veteran would not be able to be employed gainfully because of major depression-recurrent and substance abuse in sustained remission. The Board notes that the Veteran is not service connected for a psychiatric disorder and has been denied service connection for such in the past. Thus, a psychiatric disorder cannot be considered in determining whether the Veteran is prevented from securing and following a substantially gainful employment. This evidence tends to establish that a non-service-connected disability is precluding the Veteran from securing or following a substantial gainful employment. Additionally, the Board notes that the preponderance of the evidence is against a finding that the Veteran's tinnitus or bilateral hearing loss contribute to functional loss impeding employment, and the Veteran does not appear to assert that these disabilities significantly impact his ability to obtain employment. The Veteran is service connected for both knees as well, and has not alleged that these disabilities impact his ability to secure and follow a substantially gainful employment. The Veteran did not include any of these four disabilities on his applications for TDIU benefits in 2005 and again in 2011, nor did he include these disabilities in his claim for SSA disability benefits, which tends to establish that he does not believe that these disabilities are preventing him from working. The Board acknowledges that the Veteran has been unemployed since approximately 2003, as evidenced by his treatment records, personal statements, and lay statements associated with the claims file. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board finds that the April 2016 private opinion has lessened probative value. For example, Dr. Miller relies upon lay statements from the Veteran as to why he had to stop working the past, which all surround the Veteran's service-connected disabilities and the pain level that they caused. However, the evidence of record establishes that there were other reasons the Veteran stopped working in the past. For example, the Veteran was hospitalized in 1978 for schizophrenia and alcohol addiction, which included a notation that the Veteran was drinking heavily and had trouble holding a job. An August 2004 VA treatment record shows that the Veteran reported he was in prison for manslaughter. He reported he beat a man to death because here he thought the man was hitting on his wife. He described himself as being messed up on liquor and cocaine at that time and served four years in prison for this crime. He also reported his first prison sentence following his service discharge was for stealing a car. He reported being arrested on drug-related charges five times. The Veteran reported living on the streets in Colorado for 10 years. The record is replete with the Veteran abusing both alcohol and drugs for years. The August 2004 VA treatment record also showed that the Veteran reported he had been sober for one year after a "life long [history of] alcoholism." Thus, the failure of Dr. Miller to acknowledge these facts, which would have been included as part of the Veteran's claims file and which clearly had an impact on the Veteran's ability to work over the years, has lessened the probative value of Dr. Miller's opinion, where he alleges that the Veteran stopped working over the years solely because of back and hip pain. The facts in the Veteran's claims file do not support this conclusion. Two medical professionals have determined that the Veteran would not be precluded from performing sedentary work as a result of his service-connected disabilities. Dr. Miller essentially stated that because the Veteran had not been taught skills regarding sedentary work that he would not be able to perform sedentary work. Dr. Miller neglected to address the fact that the Veteran was taught skills regarding sedentary work when he performed the duties of a personnel clerk while in the service for three years. Thus, the statement that the Veteran was "never taught skills regarding sedentary type of work" is inaccurate, and this further lessens the probative value of Dr. Miller's opinion. Dr. Miller wrote that individuals with significant lumbar symptoms are more comfortable if they can sit and then be up and about for short periods of time as needed depending upon the severity of the low back symptoms. He added that the best scenario for individuals with a low back disability is to have complete freedom with respect to sitting, standing, and walking. He added that sedentary employment typically required prolonged sitting, up to six hours a day. However, while the Veteran's education and work experience may limit his employment opportunities, it does not seem that the lack of more recent training for sedentary work or lack of a college degree would preclude the Veteran from all sedentary employment. Many individuals who work at a desk can sit, stand, and move about as needed, which are the circumstances that Dr. Miller described would be a scenario in which someone with a back disability could work. Here, two VA medical professionals have specifically reviewed the issue of whether the Veteran's service-connected left hip and low back disabilities alone preclude him from a substantially gainful employment and have unanimously concluded that the Veteran is not precluded from performing sedentary employment. There is no dispute that the Veteran's service-connected disabilities limit his ability to work, but the Board finds that the preponderance of the evidence is against a finding that the service-connected disabilities preclude all forms of sedentary employment. Accordingly, the Veteran's claim for TDIU is denied. ORDER Entitlement to an increased disability rating on an extraschedular basis for degenerative joint disease of the lumbosacral spine is denied. Entitlement to an increased disability rating on an extraschedular basis for residuals of left hip injury with trochanteric tendonitis and bursitis is denied. Entitlement to an extraschedular TDIU rating is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs