Citation Nr: 18158728 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 09-19 819 DATE: December 18, 2018 ORDER A total disability rating based on individual unemployability (TDIU) from January 30, 2008 to August 20, 2013 is denied.   FINDING OF FACT From January 30, 2008 to August 20, 2013, the Veteran’s service-connected disabilities did not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW From January 30, 2008 to August 20, 2013, the criteria for a TDIU were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to November 1986. The case is on appeal from a September 2009 rating decision. Thereafter, the Veteran was granted entitlement to a TDIU from August 21, 2013 to December 3, 2013 in a September 2014 rating decision. Then, in a March 2016 rating decision, the Veteran was granted a TDIU effective March 14, 2016. In a June 2017 decision, the Board addressed entitlement to a TDIU prior to March 14, 2016, outside of the period from August 21, 2013 to December 3, 2013. The Board denied a TDIU from December 4, 2013 to March 13, 2016 and remanded the issue of entitlement to a TDIU from January 30, 2008 to August 20, 2013 for additional development. Although an August 2018 Board decision mistakenly noted that this issue was no longer before the Board, the issue is in fact still on appeal and the RO issued a September 2018 supplemental statement of the case (SSOC) prior to recertifying the issue to the Board. Additional evidence was received subsequent to the most recent SSOC issued in September 2018. As the evidence is not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a TDIU from January 30, 2008 to August 20, 2013. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). For the purpose of meeting these schedular criteria, disabilities affecting a single body system, e.g. orthopedic, will be considered as one disability. Id. Marginal employment shall not be considered substantially gainful employment. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). 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).   Factual and Procedural History The Veteran is seeking a TDIU prior to August 21, 2013. In an April 2009 notice of disagreement, the Veteran reported experiencing increasing daily back pain. In a May 2009 correspondence, he reported that he has flare-ups of his back disability one-third of the time that result in increased pain and stiffness and prevent him from functioning normally. He also stated that he had not sought treatment during a flare-up in 15 years because he had to wait long periods of time only to be given painkillers. The Veteran concluded that he cannot take a job with an employer because of the uncertain nature of his back flare-ups. Thereafter, in an August 2009 statement, the Veteran’s father reported that the Veteran has daily back pain and frequent flare-ups of severe back pain that prevent him from working. In addition, in a November 2018 statement, the Veteran’s representative stated that February 2009 and September 2012 VA examinations were found to be inadequate by the United States Court of Appeals for Veterans Claims (Court). Additionally, the contention was made that the Veteran was in a sheltered environment. The Board notes that the Veteran appealed a January 2015 Board decision denying higher ratings for his lumbar spine and lower extremity disabilities. The parties to the appeal entered into a June 2016 Joint Motion for Remand (Joint Motion) to remand these claims to the Board because the February 2009 and September 2012 examinations do not contain findings in regard to functional impairment from flare-ups. In an Order dated later in June 2016, the Court granted the Joint Motion. In an August 2009 TDIU application, the Veteran reported that he had completed six years of college courses in business and marketing. He also reported being self-employed making art work fifteen hours per week since December 1993. He stated that he missed up to six weeks of work due to illness during this period and earned $7,000 over the past 12 months. The Veteran also stated that he had tried to work in food preparation, cleaning, office work, and as a firefighter over the last 15 years, but was unable to hold these jobs. In addition, the Veteran’s VA Vocational Rehabilitation file includes a May 2012 statement that reports the Veteran visits other artists and buys their work and uses the internet to sell his own art work and resell others art work. During the period on appeal, the Veteran was service connected for a lumbar spine disability evaluated as 40 percent disabling; left side radiculopathy evaluated as 10 percent disabling from to August 1, 2009; left lower extremity radiculopathy evaluated as 10 percent disabling from August 1, 2009; right lower extremity radiculopathy of the femoral nerve rated as 10 percent disabling from November 18, 2009; and right lower extremity radiculopathy of the sciatic nerve rated as 10 percent disabling from November 24, 2010. After the period on appeal, the Veteran was service connected for major depressive disorder. However, due to the date of service connection, such disability is not considered in evaluating the present appeal as only service-connected disorders are considered. The Veteran was treated by VA for his back disability in September 2008. The Veteran reported taking over the counter medication to treat his back pain and experiencing flare-ups of pain estimated as 9 out of 10 in severity twice per month and lasting two or three days. He also reported experiencing intermittent numbness in his left lower extremity from his thigh to his heel. The Veteran was afforded a VA examination in February 2009. The Veteran reported that his back condition was getting worse. He estimated his back pain to be 7 or 8 out of 10 in severity. The Veteran also reported that he experienced discomfort when walking for longer than 15 or 20 minutes and left lower extremity numbness. The Veteran further reported experiencing flare-ups of back pain 9 out of 10 in severity 3 or 4 times per year with milder flare-ups monthly. He stated that his flare-ups typically last 2 or 3 days, but sometimes up to a month and that he does not work during flare-ups. He also stated that he has trouble getting out of bed during flare-ups. The Veteran stated that he works as a painter and sculptor, with most of his work done while is sitting. He stated that he helps with household chores, but that he cannot vacuum the floor or lift over 30 pounds. The examiner noted that the Veteran walked with a limp and shifted positions carefully while sitting during the examination. The examiner reported that the Veteran’s back was not tender to palpation and did not observe back spasms. The examiner also reported that the Veteran showed greater leg strength when resisting straight leg raising maneuvers than he showed during leg extension. The examiner stated that the Veteran had no lower extremity sensory loss. The examiner also stated that strength testing ended because the Veteran reported experiencing pain. The examiner found the Veteran had reduced range of lumbar spine motion. The examiner noted that the Veteran did not exhibit signs of pain during range of motion testing, but he reported experiencing pain. The examiner found that an estimate of the Veteran’s range of motion during flare-ups could not be provided without resorting to speculation because there are no medical records indicating the Veteran’s level of impairment during flare-ups. The examiner also noted that the Veteran does not have a history of falling or unsteadiness and does not use a belt, brace, cane, or crutches. The examiner found that the Veteran did not experience any additional loss of motion, weakness, incoordination, or fatigability during repeated use of the joint. The examiner also found that the Veteran did not generate full effort during range of motion or strength testing. Thereafter, in January 2011, VA conducted an MRI of the Veteran’s lumbar spine. A VA physician found this testing showed that one of the Veteran’s lumbar spine bones had slipped forward from the one below it. The physician noted that this change may have been responsible for the Veteran’s chronic back pain. The Veteran was afforded another VA examination in regard to his back and lower extremity disabilities in September 2012. The Veteran reported that his back had worsened since the February 2009 examination. He stated that he had constant back pain 4 or 5 out of 10 in severity and that he takes 3 doses of over the counter pain medication daily. He also reported experiencing flare-ups of his back disability once per month that last 2 days to a week or longer and result in pain 7 out of 10 in severity. He further reported that he cannot work during the flare-ups. In addition, the Veteran reported bilateral lower extremity numbness. The examiner noted the Veteran has reduced lumbar spine range of motion. The examiner also found that the Veteran has reduced lower extremity reflexes and strength. The examiner reported that the Veteran has intervertebral disc syndrome, but that he had not had any incapacitating episodes requiring prescribed bed rest in the last 12 months. The examiner also reported that the Veteran does not use assistive devices for his conditions. She stated that the Veteran does not have a limp or muscle atrophy. The examiner found that the Veteran did not give full effort during testing and that his range of motion was essentially comparable to what was found during the 2009 examination. She stated that she could not provide estimated findings for the Veteran during flare-ups without speculating. The examiner concluded that the Veteran has functional impairment of inability to bend, lift over 20 pounds, sit for more than one hour, ride in a car for more than 60 miles without stopping, and stand for over 30 minutes. The examiner found that the Veteran’s back and lower extremity disabilities would not prevent him from working light, sedentary jobs that do not require prolonged bending, sitting, standing, twisting, walking, or heavy lifting. Subsequently, pursuant to a December 2015 Board remand, the Veteran was afforded another examination in January 2016. The Veteran reported that his back and lower extremity conditions had steadily worsened. The Veteran reported his back condition was getting steadily worse and experiencing flare-ups that last for “months” at a time. The examiner reported that the Veteran has reduced lumbar spine range of motion. However, she noted that the physical therapist who conducted the range of motion testing reported that the Veteran did not give full effort during testing and exhibited greater range of motion when bending to pick up his coat. The examiner reported that she also observed the Veteran show greater range of motion than he exhibited during testing and that there was no subjective indication of pain on percussion of the lower back. The examiner concluded that the Veteran can work in sedentary positions that do not require lifting more than 20 pounds and allow for stretch breaks and changes of position every hour. Pursuant to a September 2016 Board remand, the Veteran was afforded another examination in regard to his lumbar spine and lower extremity conditions in January 2017. The examiner offered retrospective findings with regard to the Veteran’s disabilities during the February 2009 and September 2012 VA examinations. The examiner noted that, during VA treatment in November 2009 and November 2010, the physicians noted that the Veteran was able to touch his hands to his lower thighs during lumbar flexion. The examiner also noted that a November 2016 VA treatment record notes that the Veteran had full range of motion of the back on examination and that the Veteran’s VA treatment records do not contain treatment during a back flare-up. She examiner provided an estimate of the Veteran’s lumbar spine range of motion during flare-ups of forward flexion to 10 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees each, and right and left lateral rotation to 15 degrees each. However, she stated that these findings were estimated based on the Veteran’s reports of difficulty getting out of bed and dressing during flare-ups. She also stated that providing these estimates was purely speculative because there are no medical records describing his flare-ups. The examiner further noted that the Veteran provided suboptimal effort during the examination range of motion testing. The examiner concluded that the Veteran’s back and lower extremity conditions prevent him from work requiring prolonged bending, lifting, standing, or walking. However, she stated that he could work jobs sedentary jobs involving light activity that allow him to change positions every 30 to 60 minutes. The examiner explained that the Veteran reported spending time reading and that he sat comfortably for 45 minutes during the examination. Thereafter, in June 2017, the Board remanded the claim on appeal in order for the RO to refer the claim to the Director of VA’s Compensation Service for extra-schedular consideration . In September 2018, the Director found that a TDIU was not warranted in this case. Analysis Although the Veteran’s lumbar spine and lower extremity conditions caused him some impairment in regard to employment during the period on appeal, the Board finds that he was able to secure or follow a substantially gainful occupation as a result of such disabilities prior to August 20, 2013. The VA examiners indicated that the Veteran experienced pain, reduced range of motion, and mild lower extremity radiculopathy and found that he cannot perform jobs requiring lifting more than 20 pounds or prolonged bending, lifting, standing, or walking. However, the examiners also all found that these disabilities did not prevent him from performing sedentary employment. In addition, the Veteran was qualified to perform office-type work that would not have required physical exertion beyond his capabilities. He completed six years of college courses, including in the fields of business and marketing. The Veteran also displayed skills relevant to office work by running his own business for many years during the period on appeal. Furthermore, the record shows that the Veteran was able to commute regularly to a job as he was found to be able to travel in vehicles up to 60 miles at a time without stopping. The Board is using the term sedentary employment as its commonly held meaning of non-physical, light-duty, office-type job. The Veteran contends that he was unable to work due to flare-ups of his back and lower extremity conditions. In this regard, he reports experiencing frequent debilitating flare-ups during the period on appeal. However, the Veteran’s treatment records do not show that he ever sought treatment for his back flare-ups or was prescribed bed rest by a physician due to a flare-up during the period on appeal. In addition, the credibility of the Veteran’s assessments of his functional impairment, including during flare-ups, is lessened by his consistent failure to put forth full effort during the VA examinations of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In this regard, the VA examiners noted the Veteran failed to exhibit full effort during relevant testing. In addition, the February 2009 and January 2016 examiners reported observing the Veteran showed signs of having less functional impairment during the portions of such examinations when he was not undergoing range of motion testing. Furthermore, while the June 2016 JMR found that the February 2009 and September 2012 did not provide adequate findings in regard to the Veteran’s functional impairment, the January 2017 VA examiner provided retrospective findings in regard to the Veteran’s levels of impairment at the time of the prior examinations. The Board is sympathetic to the Veteran’s assertions regarding the impact his lumbar spine and bilateral lower extremity disabilities had on him during the period on appeal, both professionally and personally. However, those problems were compensated by the assigned schedular ratings. Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence such as work history and lay statements. Therefore, because the evidence of record does not show functional impairment caused by the Veteran’s service-connected lumbar spine and bilateral lower extremity disabilities resulted in an inability to secure and maintain a substantially gainful occupation from January 30, 2008 to August 20, 2013, entitlement to a TDIU is not warranted during this time period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel