Citation Nr: 18147861 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 10-06 775 DATE: November 6, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not meet the schedular criteria for TDIU. 2. The Veteran’s service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met on a schedular or extraschedular basis. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from November 1979 to August 1980. Neither the Veteran nor his representative has raised any issues with regard to 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 a duty to assist argument). The issue on appeal was most recently remanded by the Board in September 2017. At that time, the RO was instructed to request that the Veteran provide the names and addresses of all medical care providers who have treated his service-connected disabilities during the period on appeal, and to obtain additional VA treatment records. Pursuant to the Board’s September 2017 Remand directives, additional VA treatment records were associated with the claims file in October 2017 and July 2018. Additionally, in correspondence dated in October 2017, the RO requested that the Veteran provide the names and addresses of all medical care providers who have treated his service-connected disabilities during the period on appeal. As such, the Board finds that the RO substantially complied with its previous Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Applicable Law When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34. In other words, VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the Veteran is service-connected for degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling, and left leg radiculopathy with pathological reflexes, loss of great toe dorsiflexion, pain and numbness pattern associated with degenerative disk disease, evaluated as 10 percent disabling. The Veteran's combined disability rating is 50 percent. However, such disability is due to a single disability as the radiculopathy stems from the same body system as it is a neurological manifestation of his lumbar spine disease. 38 C.F.R. § 4.16(a). Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). However, when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a Veteran may be entitled to a TDIU on an extraschedular basis when 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 Board may not award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, as that regulation requires that the RO first submit the claim to the Director of Compensation Service for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015) (the Board is authorized to award extraschedular TDIU after obtaining the Director's decision). Here, the AOJ sought an opinion from the Director of Compensation Service. The AOJ’s request included a memorandum as to the Veteran's service-connected lumbar spine disability, employment history, and all other factors having a bearing on the issue of entitlement to a TDIU. In a May 2017 letter, the Director of Compensation Service concluded that entitlement to a TDIU on an extraschedular basis was not warranted, as review of the evidentiary record, with the application of reasonable doubt, did not satisfactorily demonstrate that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. Based on the evidence, the Board concludes that the preponderance of the most probative evidence of record weighs against finding that the Veteran's service-connected lumbar spine disability, and associated left leg radiculopathy, considered in combination, preclude him from obtaining or maintaining substantially gainful employment. The Board has considered the testimony of the Veteran as to the symptoms of his service-connected lumbar spine disability and left leg radiculopathy, and these statements are found to be competent, credible, and probative. However, he has not been shown to have the requisite skill and expertise to be deemed competent to opine as to whether such disabilities preclude employability. Rather, the Veteran’s assertions are outweighed by the medical evidence of record, specifically, the reports of VA examiners who undertook a detailed review of the Veteran's documented medical records and performed a complete physical examination of the Veteran. The Veteran's was educated up to the 11th grade, and his work experience includes work as a truck driver, shop foreman, and factory worker. The Veteran’s Social Security Administration (SSA) records show that his lumbar spine disorder has required the regular usage of major opioid-based painkillers such as morphine and methadone. In an April 2008 Orthopedic Examination conducted during development of his SSA Disability Benefits claim, the examining physician diagnosed the Veteran as having chronic low back pain; diminished visual acuity, history of lazy eye on the left, and history of traumatic injury on the right; left wrist pain; and substance abuse. This physician then noted that, “The claimant has a marked limitation for lifting, bending, and carrying. He has a moderate limitation for walking, vision, pushing, and pulling on the left. No limitation for pushing or pulling on the right. Mild limitation for sitting and standing. No limitation for fine motor, speech, or hearing.” In a December 2008 decision, SSA found that the range of sedentary work that the Veteran could perform was significantly compromised by the inability to sit more than four or five hours in an eight-hour work day, and determined that the Veteran had been under a disability for purposes of SSA Disability Benefits. In a July 2009 correspondence, a VA family nurse practitioner indicated that, “[b]ased on my knowledge of his work background and severity of his back pain, in my opinion he is not able to realistically be expected to work as a laborer or as a truck driver. In my opinion he did the best he could for as long as he could, and is currently doing the best he can now.” The Veteran was provided a VA Back (Thoracolumbar Spine) Conditions examination in September 2014, at which time he was diagnosed as having lumbago with sciatica (in place of radiculopathy). The examination report indicated that the Veteran occasionally used a wheelchair and regularly used durable medical equipment (DME) as an assistive device. However, with regard to employability, the examiner opined that “the Veteran indicates to me, that he would not tolerate performing any type of manual labor and sedentary work would also be difficult due to lack of tolerance with prolonged sitting, standing, walking. For this examiner to indicate what the Veteran can tolerate or not tolerate, or what he chooses or does not choose to do, would be mere speculation.” Another VA opinion with respect to the Veteran’s employability was obtained in June 2016, at which time the examiner indicated that: Overall, with review of the chart and notes on function; there are no medical restrictions given to this veteran. However, it is reasonable, given the chronic pain complaint in his low back and review of objective findings/imaging, that veteran would not tolerate heavy lifting, prolonged or repetitive bending, or extended walking related to back pain. There is no medical evidence that he could not participate in light labor or working in a setting where he would be able to change positions often. There is no medical restriction with sedentary work. Again, as previously stated, the veteran may have variant [sic] tolerance levels, but from a medical standpoint, there is no objective indication of more restrictions than is stated. In support of her May 2017 determination that entitlement to TDIU on an extraschedular basis was not warranted, the Director of Compensation Service explained that: Although the Veteran is unemployed, the objective medical evidence of record fails to establish that he is precluded from employment due to service-connected disability. The medical evidence of record shows the Veteran experiences limitation of motion of the lumbar spine with associated pain, and left leg radiculopathy, which would impact his prior employment as a truck driver. Medical records from the Social Security Administration noted the Veteran’s occupational limitations, but also note that he has residual functional capacity to perform a range of sedentary work. The record does not demonstrate that the Veteran is precluded from performing sedentary employment. The symptoms of the Veteran’s lumbar spine disability, specifically pain and limitation of motion of the back with left lower extremity radiculopathy, have been taken into account and are considered in the application of the relevant criteria in the rating schedule. His level of functional impairment is consistent with the currently assigned evaluations. Accordingly, we find that the regular schedular standards as applied in this case adequately compensate the Veteran for his overall disability picture, and that the grant of an extra-schedular evaluation is not warranted. Similarly, the Board finds that the symptomatology associated with the Veteran’s service-connected lumbar spine disability and associated left leg radiculopathy are appropriately compensated by the currently assigned ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1 (2017). Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, 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 Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board emphasizes that the SSA disability determinations also took nonservice-connected disabilities, such as vision and wrist disabilities, into account when concluding that he was entitled to disability benefits. Here, the Board can only consider the impact that service-connected disabilities have on the Veteran’s employability. Having reviewed the record, the Board finds the weight of the clinical evidence does not support his contentions that his service-connected lumbar spine disability and left leg radiculopathy are of such severity so as to preclude his participation in   any form of substantially gainful employment. As a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is inapplicable, and his claim of entitlement to a TDIU must be denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel