Citation Nr: 18157108 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-41 328A DATE: December 11, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The probative evidence of record is against a finding that the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from January 2005 to April 2005, active duty from July 2005 to November 2006, active duty for special work from October 2008 to January 2009, and full-time duty in the National Guard and active duty for training from June 2009 to March 2010. He served in the Southwest Asia theater of operations and was awarded the Combat Action Badge (CAB), among other decorations. In February 2018, the Veteran testified during a Board of Veterans’ Appeals (Board) video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously remanded by the Board in August 2018. Neither the Veteran nor his 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). 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 gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In determining whether a veteran is entitled to a TDIU, neither the veteran’s non-service-connected disabilities nor age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran’s education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The issue on appeal stems from the Veteran’s September 2012 notice of disagreement. He asserted that over the last 12 months he visited the emergency room three times due to his back going out. He reported his back gave out while walking down a flight of stairs causing him to slip and fall down the remaining stairs, straining his neck. The Veteran reported he attends physical therapy once a week for his back, and he reported taking medication. He reported loss of strength in his right leg and that at least once a month he experiences incapacitating episodes where he is not able to move or complete daily functions. The Veteran reported due to these conditions he is not able to maintain an occupation as sitting at a desk for elongated periods, extensive moving and heavy lifting increases the pain and severity. A 50 percent rating for service-connected posttraumatic stress disorder (PTSD) and a combined 70 percent rating has been awarded effective March 5, 2018 for the Veteran’s service-connected disabilities, which include degenerative disc disease of the lumbar spine with lumbar hyperlordosis, right lower extremity radiculopathy, and tinnitus. Thus, he is eligible for a TDIU on a schedular basis from March 5, 2018. 38 C.F.R. § 4.16(a). Prior to March 5, 2018, the Veteran’s service connected disabilities are rated 60 percent disabling, and he has no single disability rated 60 percent or greater. Thus, he is not eligible for a TDIU on a schedular basis prior to March 5, 2018. 38 C.F.R. § 4.16(a). The case could, however, be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU if the evidence showed he was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities during that period. 38 C.F.R. § 4.16(b). Upon review, the Board finds that the evidence does not demonstrate that the Veteran is rendered unable to secure or follow substantially gainful employment by his service-connected disabilities and referral to the Director, Compensation Service is not warranted for the period prior to March 5, 2018. It is noted that the Veteran’s work history is a bit unclear as he has not completed a VA Form 21-8940 to document such, as was requested by VA. Military personnel records reflect the Veteran was an automated logistical specialist and cannon crewmember during military service. VA examination reports reflect the Veteran studied business and general studies, and attained a bachelor of science degree. He reported he worked as a supply clerk, with personnel, and went to officer candidate school during military service. He reported working as an administrative manager and he oversaw personnel. After service the Veteran worked factory jobs in cheese making and plastic injection. He reported being self-employed trying to develop a company to manufacture solar panels. In May 2013 the Veteran’s private treatment provider reported the Veteran has intervertebral disc disorder with myelopathy. He reported the Veteran continues to work despite pain and discomfort. An October 2016 VA examiner noted the Veteran’s back pain is aggravated by extensive walking, bending, or lifting weights. A November 2017 VA neurological examiner reported that there is no objective evidence that the Veteran has bilateral upper or lower extremity radiculopathy and that his cervical and lumbar spine disabilities are mild and not causing radiculopathy. VA treatment records reflect the Veteran experiences muscle spasms. He has reported that he has experienced back pain and spasms since the initial injury in service and that it is difficult to walk around and move his trunk, and felt that his balance was off because of the constant back spasm. On March 6, 2017, the Veteran’s VA treatment provider reported that the Veteran has a slightly stiffened and antalgic gait. At his February 2018 hearing the Veteran reported pain, poor coordination, and muscle cramps. He reported difficulty sleeping due to his back. In February 2018 a private chiropractor, the Veteran’s uncle, reported that the Veteran has a pronounced and significant unbalanced muscular hypertrophy along his spine. He reported that the resultant imbalance of forces along his spine has led to a progressive scoliosis of his spine with attendant pain and discomfort. The evidence of record reflects that since March 5, 2018 the Veteran continues to undergo VA treatment for his back disability. In August 2018 the Veteran reported he used to have flare-ups two to three times a year but now reports flare-ups two to three time a week. He undergoes physical therapy and uses a muscle relaxant and medication. The treatment provider reported the Veteran does not have sciatica or myelopathic symptoms. The Board notes that the Veteran does experience impairment due to his service-connected back disability. However, upon review the Board finds that this level of impairment is appropriately addressed by the currently-assigned disability ratings. After review of the medical evidence and the Veteran’s lay statements, the Board finds the Veteran does have symptoms – such as pain and discomfort – which would make employment more difficult, but the evidence simply does not establish that the Veteran’s service-connected back disability and associated right lower extremity radiculopathy render him unable to secure or follow substantially gainful employment. There is no indication of any service-connected physical impairment that would preclude employment based on the Veteran’s education and work history. While there may be some difficulty sitting at a desk for extensive periods and performing manual labor lifting heavy objects, and bending, walking and standing, the evidence in this case indicates this difficulty would not preclude employment. The Veteran is also service-connected for tinnitus and PTSD, but he has not asserted, and the evidence does not reflect, that it precludes employment. Indeed, while PTSD was not diagnosed at the Veteran’s September 2011 VA PTSD examination, the examiner opined that the Veteran’s mental health conditions overall were not severe enough to interfere with occupational and social functioning. During the period on appeal the evidence reflects the Veteran’s psychiatric symptoms have resulted in recurrent distressing dreams and flashbacks, avoiding others, loss of interest and detachment from others, difficulty concentrating, sleeping and irritability and verbal outbursts towards others. See March 2018 Private Treatment Report. His VA treatment provider reported the Veteran demonstrated symptoms of depression, anxiety, and difficulty with attention and memory which is likely a combination of his PTSD and attention deficit disorder. Treatment records reflect the Veteran was a stay at home dad with three young daughters who volunteered with a local fire department but tended to freeze and was unable to respond to fire calls. See April 2018 VA Treatment Report. While there may be some problems with productivity and difficulty interacting with coworkers or supervisors in a work environment, the Board does not consider this level of impairment as one that would preclude employment even in combination with the mild physical impairments from his back and radiculopathy. Given the Veteran’s education and work history, including his college degree and experience in positions managing others, and that the VA examiner has reported that the Veteran’s back disability symptoms are mild, the Board finds that the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities at any time during the period on appeal. Thus, entitlement to a TDIU from March 5, 2018, and referral for extraschedular consideration for a TDIU prior to March 5, 2018 is not warranted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel