Citation Nr: 18152240 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 09-50 543 DATE: November 21, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for a cervical spine disorder is denied. Entitlement to a disability rating in excess of 20 percent for a left shoulder disorder is denied. Entitlement to a disability rating in excess of 30 percent for general anxiety disorder is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Forward flexion in the Veteran’s cervical spine has not been functionally limited to 15 degrees or less, favorable ankylosis of the entire cervical spine has not been shown, and bed rest has not been shown to have been prescribed to treat any incapacitating episodes of intervertebral disc syndrome of the cervical spine. 2. The Veteran’s left shoulder disability (non-dominant) was not manifested by range of motion functionally limited to 25 degrees from side. 3. The occupational and social impairment from the Veteran’s anxiety disorder more nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. The Veteran’s service-connected disabilities did not prevent him from securing or following gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for a neck disability have not been met. 38 U.S.C. §1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. The criteria for a disability rating in excess of 20 percent for a left shoulder disorder are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5201. 3. The criteria for an initial rating in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9412-9400. 4. The criteria have not been satisfied for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1997 to December 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision. The Board notes the Veteran initiated an appeal as to a claim for an increased rating in excess of 10 percent for migraines. The Veteran specifically requested a 30 percent evaluation for his migraine disability in his August 2008 Notice of Disagreement. In an August 2009 rating decision, the RO granted an increased rating of 30 percent for the Veteran’s migraine disability, effective from the start of the appeal period. As such, the claim has been granted in full and is no longer on appeal. Entitlement to a TDIU has been raised by the evidence of record. The Board has recharacterized the issues on appeal to include entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. 1. Cervical Spine Disorder The Veteran asserts that his cervical spine disorder should be rated higher than the currently assigned evaluation. The Veteran’s cervical spine disorder is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5237. A 20 percent evaluation contemplates forward flexion greater than 15 degrees but not greater than 30 degrees, a combined range of motion is not greater than 170 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. See 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (Spine Rating Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the IVDS Rating Formula, a 20 percent rating is assigned when IVDS causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). In a December 2006 VA examination, forward flexion was to 25 degrees, extension to 20 degrees, bilateral lateral flexion was to 15 degrees, and bilateral lateral rotation was to 45 degrees, without pain. On repetitive flexion and extension, there was no decrease in range of motion or additional functional impairment due to pain, fatigue, weakness, or lack of endurance. The examiner noted the ranges of motion during passive, active, and three repetitive motions are the same. The Veteran was afforded a VA examination in June 2009. The Veteran described tender spots on the right side of his neck that restricted motion. Upon examination, forward flexion was to 35 degrees, extension to 30 degrees, and bilateral lateral rotation was to 30 degrees, with pain. No incapacitating episodes requiring hospitalization. No additional functional impairment due to pain, pain on repeated use, weakness, fatigue, lack of endurance, incoordination, or flare-ups. Upon VA examination in August 2017, the Veteran denied flare-ups or functional loss. Upon examination, forward flexion was to 45 degrees, extension to 45 degrees, bilateral lateral flexion was to 45 degrees, and bilateral lateral rotation was to 80 degrees. Pain was noted on examination, but the examiner noted it does not result in or cause functional loss. There was no evidence of localized tenderness, pain on palpation, or pain with weight bearing. The Veteran was able to perform three repetitions with no additional loss of function or range of motion. The examiner noted pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use or flare-ups. He further noted that in the absence of flare-ups at examination, or after repeated use over time, he could not describe in terms of the degrees of additional range of movement. The examiner noted spasms not resulting in abnormal gait or spinal contour. The Veteran had normal strength and normal reflexes and sensory testing. In a June 2018 VA examination, the Veteran described increased pain, interference with sleep, and interference looking side to side and with lifting. The Veteran demonstrated forward flexion to 25 degrees on range of motion testing. The examiner indicated that the Veteran’s range of motion does contribute to a functional loss, but there was no evidence of pain upon weight bearing. The Veteran was able to perform three repetitions of range of motion testing, but there was no additional functional loss. The VA examiner reported weakness, pain, and lack of endurance with additional limitation of functional ability during flare-ups or repeated use over time. The examiner opined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use of time and flare-ups, but was not able to describe in terms of range of motion because the Veteran reported he is unable to range his neck during a flare-up. The examiner indicated that the Veteran did not manifest ankylosis or IVDS of the cervical spine. In a September 2018 VA examination, the Veteran reported he is unable to rotate his neck. The Veteran demonstrated forward flexion to 35 degrees on range of motion testing. The examiner indicated that the Veteran’s range of motion does contribute to a functional loss, but there was no evidence of pain upon weight bearing. The Veteran was unable to perform three repetitions of range of motion testing, because of fear of pain. As to repeated use over time, the examiner indicated that the Veteran was not being examined after repetitive use over time. As to whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time or flare-ups, the examiner was unable to say without mere speculation. The examiner explained that there is no conceptual or empirical basis for making such a determination without directly observing such function under these conditions. As such, the examiner was not able to describe in terms of degrees of motion. The examiner indicated that the Veteran did not manifest ankylosis or IVDS of the cervical spine. Based on the foregoing, the Board finds that a rating in excess of 20 percent for cervical spine disability is not warranted. The pertinent evidence of record does not show forward flexion of the cervical spine to 15 degrees or less, nor ankylosis to a rating in excess of the currently-assigned 20 percent disability rating under the General Rating Formula. Indeed, flexion was limited to no less than 25 degrees during the entire rating period on appeal. The Board has also considered a higher evaluation in this case based on the presence of additional functional loss not contemplated in the current 20 percent evaluation based on the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. In light of the medical findings discussed above, the Board finds that the functional equivalent of forward flexion to 15 degrees or less or ankylosis of the cervical spine is not shown, even when considering the Veteran’s flare-ups and ongoing complaints of pain, and functional loss and/or impairment following repetitive use of the cervical spine. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an evaluation in excess of 20 percent. The Board has considered the Veteran’s reported history of symptomatology for his cervical spine disability. It is acknowledged that he is competent to report symptoms and observations, such as pain, because this requires only personal knowledge as it comes through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to identify specific levels of his cervical spine disability according to the appropriate diagnostic codes and relevant rating criteria. In this case, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. In this regard, the Veteran’s radiculopathy has been associated with the Veteran’s neck disability. However, the Veteran has already been granted service connection for these conditions for the entire appeal period. Additionally, no other abnormalities have been found. Therefore, further consideration of separate ratings is not warranted. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to a disability rating in excess of 20 percent for a neck disorder. As such, entitlement to a disability rating in excess of 20 percent for a cervical spine disability is denied. 2. Left Shoulder Disorder The Veteran asserts that his left shoulder disorder, currently rated at 20 percent disabling, should be rated higher than the currently assigned evaluation. VA examinations consistently reflect that the Veteran is right hand dominant. Under DC 5201, limitation of motion of the shoulder warrants a 40 percent rating for the major arm (30 percent minor) where limited to 25 degrees from the side, a 30 percent rating for the major arm (20 percent minor) where limited midway between the side and shoulder level, and a 20 percent rating for either arm where limited at shoulder level. 38 C.F.R. § 4.71a, DC 5201. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Normal shoulder motion is from 0 to 180 degrees of forward elevation (flexion), from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. The Veteran was provided a VA examination in December 2006. The Veteran reported suffering from left shoulder pain and difficulty reaching overhead. He denied stiffness or flare-ups. Upon examination, his flexion was to 100 degrees, abduction to 90 degrees, and external and internal rotation to 75 degrees, with pain. The VA examiner further noted there was no limitation of range-of-motion due to fatigue, weakness, lack of endurance or incoordination. The Veteran was provided a VA examination in June 2009. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran was right handed. The Veteran described constant, sharp pain. Upon examination, the Veteran had forward flexion to 100 degrees, abduction to 90 degrees, pronation to 70 degrees and supination to 70 degrees. There were no incapacitating episodes requiring hospitalization. No additional functional impairment due to pain, pain on repeated use, weakness, fatigue, lack of endurance, incoordination, or flare-up. Finally, the Veteran was provided a VA examination in August 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran denied functional loss and shoulder flare-ups. Upon examination, the Veteran’s shoulder range of movement was normal in both shoulders. The examiner noted pain on examination, but indicated it does not result in or cause functional loss. The Veteran did not exhibit localized tenderness, pain on palpitation, guarding. The examiner noted pain, weakness, fatigability or incoordination does not limit functional ability with flare-ups or repeated use. Muscle strength testing revealed normal strength. Moreover, the examiner did not observe ankylosis or impairment of the humerus or clavicle or scapula. The preponderance of the evidence is also against awarding a rating in excess of 20 percent. The objective clinical findings do not show that the Veteran’s left shoulder disability manifests in limitation of motion to 25 degrees from the side. Thus, a rating in excess of 20 percent is not warranted. § 4.71a, DC 5201. In reaching the above findings, the Board has appropriately considered functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995), Burton v. Shinseki, 25 Vet. App. 1 (2011). While the evidence indicates pain on movement, it does not demonstrate any additional loss in range of motion of the right shoulder. Moreover, the Veteran has denied flare-ups. As such, ratings in excess of those provided herein are not warranted. The Veteran’s statements of his observable symptoms, including shoulder pain and resulting functional effects are probative evidence; however, his lay statements are outweighed by the objective and detailed range of motion findings as measured by VA physicians. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has also considered whether an increased rating is warranted under the other criteria for rating the arm and the shoulder, but finds that such criteria are inapplicable. The evidence does not show ankylosis, or impairment of the humerus or clavicle or scapula, therefore DCs 5200, 5202, and 5203 do not apply. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial rating in excess of 20 percent for a left shoulder disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). 3. Anxiety Disorder The Veteran currently receives a 30 percent rating for his anxiety disorder. He asserts that the currently assigned evaluation does not adequately reflect the severity of his disability. The Veteran’s anxiety disorder is currently rated under 38 C.F.R. § 4.130, DC 9400-9412. Under the applicable rating criteria, a 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. Turning to the relevant evidence of record, the Veteran was afforded a VA examination in December 2006. The Veteran reported blackouts, anxiety attacks, and social anxiety. His primary care physician prescribed medications for anxiety and panic attacks. On examination, he was oriented to person, time and place. He did not appear to be experiencing any perceptual disorder. There was no disturbance in the form or content of his thoughts. He did not appear to be experiencing any hallucinations. He was assigned GAF score of 62-65; indicative to mild symptoms. On VA examination in June 2009, the Veteran denied hospitalization or outpatient treatment with a mental health professional. The Veteran reported social anxiety, sleeplessness, and panic attacks. Upon examination, the examiner noted a general appearance suggesting neglect for effect. The Veteran was subtly hostile and uncooperative. He was oriented to place, person, and situation. He did not appear to be experiencing any perceptual disorder. He was not suspicious during the interview. He denied any history with suicidal ideation or homicidal ideation. He was assigned a GAF score of 65. In an October 2012 VA treatment note, the Veteran reports his past issues of anxiety, depression, and work difficulty are resolved. He denied suicidal and homicidal ideation, plan, or intent. In an April 2013 treatment note, the Veteran reported doing well psychologically. He denied significant depression and anxiety, and did not believe he needed therapy at the time. In December 2013, the Veteran presented to the VA emergency department complaining of panic attacks and anxiety and requesting medication refill. The attending physician noted the Veteran was evasive, vague with his symptoms, and feigning symptoms. A GAF score of 55 was assigned. In a November 2016 treatment note, the Veteran reported starting a new job and getting married. He reported panic attacks, feeling down and depressed, but nothing severe. On examination, he was dressed appropriately, cooperative, alert, and oriented. His thought process was logical, sequential, and relevant. He denied suicidal/homicidal ideations, hallucinations, and perceptual disturbances. Finally, the Veteran was afforded a VA examination in August 2017. The examiner diagnosed generalized anxiety disorder with panic attacks. Symptoms attributable to the diagnosis included anxiety, panic attacks, chronic sleep impairment, disturbances of mood and motivation, and difficulty in adapting to stressful circumstances. On examination, he was alert and fully oriented. His mood was mildly anxious and affect was congruent. He denied suicidal/homicidal ideation. The examiner determined that the Veteran’s mental condition resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Board finds that a disability rating in excess of 30 percent is not for application. Rather, the Veteran’s anxiety disorder more nearly approximated “occupational and social impairment due to mild or transient symptoms which decreased work efficient and ability to perform occupational tasks only during periods of significant stress, or; symptoms were controlled by medication” and is therefore adequately contemplated by the assigned 30 percent rating. In this regard, the Veteran consistently demonstrates symptoms more closely approximated by the 30 percent disability rating than the 50 percent rating, or higher. He consistently experienced anxiety, chronic sleep impairment, and panic attacks, all symptoms encompassed by the 30 percent rating criteria. There is no evidence of a flattened affect, speech problems, difficulty understanding complex commands, impairment of short and long-term memory, impaired judgment; or impaired abstract thinking. This does not suggest that the Veteran does not have problems with his anxiety disorder, simply the degree of the problem is at issue. His statements, overall, are consistent with the finding regarding the nature and extent of this disorder. As such, the Board finds that the Veteran’s anxiety disorder symptomatology is most closely approximated by the assigned 30 percent disability rating. The Veteran’s anxiety disorder symptoms as a whole during the rating period are not of similar severity, frequency, and duration to those in the rating criteria for the assignment of a 50 percent (or higher) rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The preponderance of the evidence is against the Veteran’s claim of entitlement to an increased disability rating for an anxiety disorder in excess of 30 percent. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. 4. TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341 (a). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A review of the record evidence shows that the Veteran currently meets the scheduler criteria for a TDIU. See 38 C.F.R. § 4.16 (a). Consequently, the Board must now determine whether these service-connected disabilities preclude the Veteran from engaging in substantially gainful employment. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. According to the Veteran’s April 2018 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran stated he is unable to work due to his service-connected migraines, anxiety, back, and cervical spine disorders. He reported that he last worked in April 2018 as a laborer for a steel company. The Veteran listed over ten years of prior occupations in in labor, food service, and handyman. The Veteran also reported that he has four years of college education. The Veteran also indicated that he has some training in firefighting and hazardous material. In this case, the preponderance of the evidence is against the award of a TDIU, because it appears that the Veteran is continuing to work. In June 2014, the Veteran reported working in warehousing and shipping. In November 2016, the Veteran said he is unable to come to the VA medical center because he cannot take time off from work. A June 2018 VA examination notes the Veteran works in construction as a foreman. Moreover, in September 2018, the VA examiner opined that the Veteran was able to perform light work. Finally, in May 2018, June 2018, and August 2018, the Veteran’s previous employers returned VA Forms 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. On the forms, the employers indicated that the Veteran’s employment ended due to lay-offs/lack of work, not his disabilities. Consequently, a TDIU is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. Therefore, the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel