Citation Nr: 18141138 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 12-27 355 DATE: October 9, 2018 ORDER Entitlement to a total rating due to service-connected disabilities (TDIU) is denied. FINDING OF FACT 1. Service-connected prostate cancer is currently rated totally disabling, and the Veteran is in receipt of special monthly compensation due to being housebound. 2. The preponderance of the evidence of record shows that the Veteran’s service-connected disabilities not currently rated as totally disabling do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for Entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to a TDIU Applicable Legal Requirements A total 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). 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 (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 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate 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). Factors to be considered are the veteran’s education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). Discussion Prior to March 18, 2011, the Veteran’s total rating for his service-connected disabilities were less than 70 percent. See 03/17/2016 Rating Decision-Codesheet. Nonetheless, VA’s policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. §§ 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (“On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.”). As discussed below, the Board finds that the evidence does not support a finding for referral for a TDIU on an extraschedular basis for the period prior to March 18, 2011. Hence, the Board will discuss the issue as it applies to the entire rating period. Until late in the rating period, the sole basis of the Veteran’s claim of entitlement to a TDIU was his lumbar spine disability, as his type 2 diabetes mellitus, coronary artery disease (CAD), and hypertension were not service-connected until later. The Board still will consider the diabetes from the start of the period, however, because it was one of the disabilities a Social Security Administration (SSA) administrative law judge (ALJ) considered in the award of disability benefits administered by that agency. The inception date of the rating period on appeal is December 12, 2003. See 10/22/2010 Rating Decision. On his application for a TDIU, the Veteran indicated that he had 4 years of college, and that he had earned $1057.00 per month between January 2004 and December 21, 2007. See 02/24/2011 VA 21-8940. The Board noted in the July 2017 remand that the Veteran had indicated on other occasions that he last worked in 2003 and requested clarification. See 07/07/2017 BVA Remand, Per the Board remand, the RO asked the Veteran to provide records of his income for the period 2003 to present. See 03/21/2017 Other. The Veteran did not respond to the request, as conceded by his representative in the Appellate Brief. In the absence of evidence to the contrary, the Board finds that the Veteran earned at least $1057.00 per month for the period January 2004 to December 2007, as noted on his February 2011 VA Form 21-8940. That equates to $12,684.00 per year. A claimant is deemed to be engaged in substantially gainful employment if earnings exceed the poverty threshold for one person as set by the U.S. Department of Commerce. 38 C.F.R. § 4.16(a). The Veteran was under 65 years of age during the years in question. Further, he and his wife divorced in September 1975, and their youngest child turned 18 in March 1994. See 06/23/1997 Court Documents; Status of Dependents. The poverty threshold for one person under 65 was: 2004, $9646.00; 2005, $9973.00; 2006, $10,294.00; and, 2007, $10,590.00. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Thus, the Board finds that the Veteran was gainfully employed during those years. In a December 2010 decision, the ALJ determined that the Veteran last worked on December 21, 2007 and found him disabled for SSA purposes as of December 31, 2007. See 02/24/2011 SSA-831. The ALJ considered the lumbar spine and non-insulin dependent type 2 diabetes mellitus disabilities as the basis for the Veteran’s disability findings, which were deemed severe under applicable SSA regulations. SSA determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). Nonetheless, the Board still must provide the basis for disagreeing with or not accepting a finding of disability by SSA. Id. The ALJ still that the Veteran had Residual Functional Capacity (RFC) for sedentary employment as defined by regulations applicable to the SSA, see 20 C.F.R. § 404.1567(a). The Court of Appeals For Veterans Claims (Court) just recently held that the term “sedentary” has no legal significance to the issue of employability under VA regulations; it is not defined for VA employability purposes; and, when it is used, there must be an explanation as to how it is applied to a veteran’s individual case. Withers v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1054 (__ Vet. App. ___, Aug. 10, 2018). Thus, the Board applies the ALJ’s finding no further than that the Veteran is not completely incapable of employment. The Board makes this determination because, under SSA regulations, the ALJ’s findings included consideration of the Veteran’s age, whether there were any sedentary jobs in the U.S. economy that included his RFC, and whether his skills were transferable to employment different from what he formerly performed. Although the Veteran’s education, etc., must be considered by the Board, none of the noted factors are involved when determining employability for VA purposes. Hence, the SSA determination does not dictate the Board’s action. The ALJ applied the work restrictions determined in November 2010 at an examination conducted for that purpose. That examination report reflects that the Veteran complained of low back time of several years duration, but that it recently had become more severe and constant; and, that he had difficulty getting up and down. He reported further that he had been admitted for shortness of breath and palpitations two weeks before the examination, but there was no diagnosis. The examiner noted that the Veteran guarded his back on every movement. Physical examination revealed lumbar muscle spasms, forward flexion of 0 to 45 degrees. The Veteran’s gait and neurological examination were normal, as was his EKG. The examiner noted that the Veteran could button his clothes, and that he had difficulty tying his shoes due to lumbar spine muscle spasms. X-rays revealed DDD of L5-S1. Based on the examination, the examiner determined that the Veteran could occasionally lift or carry up to 10 pounds; at one time sit for up to an hour, stand and walk for up to 20 minutes; over an 8-hour day, sit for up to 5 hours, stand for up to 2 hours, and walk for up to 1 hour. He could not operate foot controls. At the time of the examination, the Veteran did not use a cane to ambulate. The examiner opined that there were no limitations due to the diabetes. See 03/06/2014 SSA, 1st Entry, P. 30-35. The ALJ referenced the Veteran’s testimony that he had low blood sugar 3 to 4 times a week, and that pain interfered with his concentration, and determined that the Veteran should never operate a motor vehicle. See 02/24/2011 SSA-831. The Board finds no basis in fact for that determination. A VA examination report (01/25/2010 VA Examination) reflects that the Veteran complained that lifting aggravated his low back pain, and he denied that the pain radiated. He reported further that he could stand for 15 minutes; walk for 100 yards on a good day; and, he used a back brace occasionally. Physical examination revealed tenderness of the entire lumbar spine, the Veteran’s posture was stiff, and his gait antalgic. Forward flexion was to 60 degrees with pain onset at 45 degrees. Straight leg raising was positive bilaterally. The examiner diagnosed mild lumbar instability and opined that the disability had moderate impact on chores, shopping, and distance driving. Id. He underwent a VA general examination in July 2011 conjunction with his claim. He reported that he had not recently undergone physical therapy, and he complained of constant pain of 8 to 9/10 intensity. He reported further that walking, standing, or bending aggravated the pain; and, that he could not walk more than 15 minutes without back pain, but he denied radiation. The Veteran denied any complications from his diabetes and complained that there was not much he could do as a result of his back, knees, and shoulder, but primarily due to his back. He ambulated without a cane, and his gait was antalgic. Examination revealed generalized tenderness but no spasms; forward flexion was to 50 degrees with pain; straight leg raising negative; no lower extremity weakness; and, sensation was normal. The examiner opined that there was functional impairment from the hypertension; mild to moderate impairment from the diabetes; and, moderate to severe impairment from the low back disability, as prolonged sitting would aggravate it. See 07/19/2011 VA Examination. The Board finds that the work restrictions provided to the ALJ show that while the Veteran would encounter difficulty performing employment that exceeded his restrictions as medically determined, they did not show that he was not physically incapable of performing any employment. Neither the January 2011 or July 2011 VA examination resulted in an assessment that the Veteran could not perform any employment. As noted earlier, the Veteran has a college degree, and his past work included law enforcement and work that entailed paperwork. VA outpatient records note that the Veteran started using a cane for ambulation but do not indicate that it was due solely to the low back disability, as the Veteran complained both of increased low back pain, and some right knee instability. See 01/15/2013 CAPRI, 1st Entry, P. 40. These records also note that the Veteran’s diabetes was brought into control due to his compliance with medical guidance, and that he even was able to be weaned off of insulin. He was under no exercise restrictions. Id., P. 119. Although his complaints of low back pain were chronic, and real, the Veteran still was independent in his activities. He reported in August 2013 that he walked in the morning 3 to 4 times a week. See 06/03/2014 CAPRI, P. 56. In February 2016, the Veteran was diagnosed with CAD, for which the examiner determined that there was no work impairment from the disability. See 02/26/2016 Other. It was service connected the next month. See 03/17/2016 Rating Decision. At the April 2016 VA spine examination, the Veteran complained of low back pain that sometimes throbbed and ached, and would not allow him to straighten up. He reported that he could not lift more than 40 pounds, walking a long distance was a problem, and bending was out of the question. He used a cane to assist with ambulation. Physical examination revealed tenderness and spasm of the lumbar spine; forward flexion was to 60 degrees; there was pain on weight bearing; neurological examination was normal; and, the examiner found no intervertebral disc syndrome or lumbar radiculopathy. 04/13/2016 C&P Examination. The examiner opined that the low back disability would result in limited standing, walking, bending, squatting, and climbing. Id., P. 8. At a series of examination in June 2016, an examiner opined that there was no work impairment due to the diabetes mellitus. 06/03/2016 C&P Examination, P. 4-14. The Veteran’s lumbar spine examination revealed that the disability continued to manifest essentially as before, except that the Veteran reported the occasional use of a walker due to his low back pain. Id., P. 25. The Veteran denied radiation of his pain. The examiner noted that there was no work impairment from the low back disability, but also noted that the Veteran’s mobility was limited, as he had to use a walker for distances greater than a few feet or if standing for longer than a few seconds, also to transfer into a vehicle. Id., P. 26-27. The examiner noted that the work impairment of the CAD was limited functional ability to walk, exert, or climb. Id., P. 39. The Veteran also has peripheral neuropathy of his lower extremities due to his diabetes. The examination report reflects that the Veteran reported daily numbness and tingling and poor balance, but he denied any problems with driving. The examiner noted moderate subjective pain, numbness, and tingling. Examination revealed normal strength and reflexes, and minimal decreased sensation. The examiner opined that the disability did not impact the Veteran’s ability to work. 07/13/2016 C&P Examination, 1st Entry. The Board notes the fact that the Veteran started occasional use of a walker, and the examiner’s note that he could stand for only a “few seconds,” but finds that notation inconsistent with the bulk of the evidence. The preponderance of the evidence clearly shows that the Veteran has chronic low back pain that limits his ability to stand, walk, and sit for prolonged periods. On the other hand, he still drives and remains independently functional. The RO continued the 100 percent rating for the prostate cancer. See 03/07/2017 Rating Decision. Hence, that disability is not considered when assessing the issue of TDIU. The examinations of record consistently reflect that the diabetes, CAD, and hypertension, have no work impairment. A holistic assessment of the Veteran’s disabilities shows the lumbar spine disability to be the prominent one, symptom wise. As discussed above, however, the Board still finds that the service-connected disabilities other than prostate cancer do not prevent the Veteran from obtaining and maintaining substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board noted earlier that it did not find a plausible basis on which to refer the case to the Director for consideration of TDIU on an extraschedular basis for the period prior to March 18, 2011.   The Board notes that the RO has already awarded SMC under 38 U.S.C. § 1114(s) for service-connected disabilities other than the prostate cancer that are totally rated at least at 60 percent disabling. DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder