Citation Nr: 20081663 Decision Date: 12/30/20 Archive Date: 12/30/20 DOCKET NO. 17-41 663 DATE: December 30, 2020 ORDER Entitlement to referral for extraschedular consideration for total disability rating for compensation due to individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for referral for an extraschedular TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1975 to October 1979 and from September 1980 to September 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran disability ratings greater than 10 percent for his thoracolumbar spine and left knee disability as well as greater than 20 percent for his cervical spine and bilateral carpal tunnel syndrome disabilities. While the Veteran’s increased ratings claims were denied in a September 2020 Board decision, the Board determined that the issue of entitlement to TDIU rating was raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Board remanded the matter to properly notify the Veteran and his representative concerning the information and/or evidence needed to substantiate a TDIU claim, and to provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request that he complete the form in its entirety and return it to VA. Subsequent development was performed, consistent with the remand order; however, no response has been received from the Veteran, who has not submitted VA Form 21-8940. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that he cannot work because of his service-connected disabilities, to include his left knee, thoracolumbar spine, cervical spine, hearing loss, tinnitus, and bilateral carpal tunnel disabilities. He has reported that pain in his joints and back limit his endurance and prevent him from staying in one position for extended periods. He has indicated that carpal tunnel syndrome causes pain and swelling, and limits the repetitive use of his hands. He has also reported ringing in his ears and difficulty understanding conversations due to hearing loss. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran’s service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). The Veteran is service connected for degenerative disc disease of the thoracolumbar spine at 10 percent; residuals of cervical laminectomy rated at 20 percent; residuals of a left knee injury, degenerative joint disease, rated at 10 percent; right carpal tunnel syndrome rated at 20 percent; and left carpal tunnel syndrome rated at 20 percent. The Veteran is also rated at zero percent for bilateral hearing loss and a left knee scar, for a combined rating of 60 percent. The Veteran also has multiple conditions, for which he is not service connected, and, thus, cannot be considered for purposes of the Veteran’s TDIU claim, including COPD, which appears to be characterized at times in the medical record as oxygen-dependent emphysema. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that referral for extraschedular consideration is warranted. The reasons follow. Relating to the Veteran’s bilateral carpal tunnel syndrome, treatment notes indicate the Veteran routinely denied numbness and weakness on examination in 2018 and 2019, and the examiner recorded multiple normal motor and sensory examinations. On VA examination in November 2019, the Veteran was noted to use a brace and to experience moderate numbness and incomplete paralysis of the median nerve. However, the Veteran was found to have full strength, no atrophy, a normal gait, and normal sensation and reflexes on testing. As to the impact on the Veteran’s ability to work, the examiner stated that the Veteran’s hands go numb with prolonged typing or writing. On VA examination for the thoracolumbar spine disability in November 2019, the examiner documented normal range of motion with mild pain on palpitation. The examiner wrote the Veteran continued to have normal range of motion with repeated use, but endured pain, fatigue and lack of endurance. These findings were noted to be consistent with the Veteran’s statements regarding his functional loss during flare-ups. The Veteran was found to have normal strength, sensation, and reflexes, with no atrophy and negative straight leg raise testing. As to the impact on his ability to work, the examiner noted that the Veteran reported that he was medically retired and that he has difficulty doing work around his home due to back pain and stiffness. The Veteran also underwent a VA examination for assessment of his cervical spine disability in November 2019. He reported that decreased range of motion makes driving difficult. The Veteran was found to have bilateral moderate radiculopathy, but with normal muscle strength, sensation, and reflexes, and no ankylosis. He denied experiencing flare-ups. Although the Veteran was noted to experience pain with continued use over time, the examiner stated that the Veteran’s cervical spine condition does not impact his ability to work. The Veteran also underwent a VA examination for assessment of his left knee disability in November 2019. The Veteran exhibited pain on weight-bearing, but with no crepitus. The examiner documented normal strength with no instability and no atrophy. The examiner documented the Veteran had normal range of motion, even with repeated use, but with pain, weakness, and lack of endurance. The Veteran reported experiencing 1 to 2 flare-ups per month lasting 3 to 4 days with increased pain and decreased range of motion in the knee. The examiner indicated that weakness and pain in the knee with ambulation impacted the Veteran’s ability to work. Treatment notes from 2019 generally reflect the Veteran to have normal gait, balance, and stance, despite continued reports of pain with some instability in the knee. As to the Veteran’s hearing loss and tinnitus, the Veteran has reported that he has trouble understanding conversational speech. Recent treatment records from 2019 indicate that the Veteran was able to hear fingers lightly rubbing outside both ears and he was described as conversive without any noted difficulties understanding conversational speech. Separate records state that the Veteran is able to converse in a meaningful manner. His hearing loss and tinnitus were described as stable, and his cranial nerves were intact, including his hearing. In 2018, the Veteran was noted not to have any hearing complaints. Based on the most recent findings of record relating to the Veteran’s service-connected disabilities, the Board acknowledges that the Veteran experiences pain and some reduced range of motion in the back and joints with some pain, fatigue, and lack of endurance with repeated use over time. The Veteran also experiences flare-ups of the knee and spine and has reported that he cannot stay in one position for an extended period. Additionally, symptoms of carpal tunnel syndrome preclude the Veteran from prolonged writing/tying. However, the record also demonstrates many normal findings on physical examination, such as normal strength, sensation, and reflexes in the spine, with no atrophy and negative straight leg raise testing; normal gait, strength, balance and stability in the knee; and normal motor and sensory findings on examination for bilateral carpal tunnel syndrome. Despite hearing loss and tinnitus, a preponderance of the evidence does not indicate these issues cause the Veteran communication deficits, based on the testing, noted above, a lack of complaints, and the Veteran’s ability to converse in a meaningful manner. These findings suggest that the Veteran would be capable of performing jobs that require limited physical activity with the ability to change positions as needed and that do not require persistent fine manipulation. This is supported by medical notes that indicate that the Veteran is able to live independently and still does things like laundry, dishes, and cooking. The same note indicated that the Veteran does very little yardwork, based on his need for supplemental oxygen, which is not associated with his service-connected disabilities. Regardless, the Veteran has demonstrated the ability to perform tasks involving light physical activity that requires the use of his hands. Regarding the Veteran’s education, training, skill, and work history, an evaluation relating thereto has been hindered by the Veteran’s failure to submit Form 21-8940, which was provided to him and requested to be returned, pursuant to the September 2020 Board remand. The Board notes that the duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 U.S.C. § 5107(a). However, the Veteran’s treatment records provide some pertinent information. For example, medical notes indicate that the Veteran began working full time for Boeing as a contractor and supervisor after his discharge from active duty until being placed on disability, presumably through his employer, in June 2014. Treatment notes indicate that the Veteran was a mechanic, who worked on harrier jets at military bases and had managerial duties. This employment history reflects highly skilled work that would require a capacity for learning, training, and communicating effectively with others. These skills do not appear to have been hindered by the Veteran’s service-connected disabilities. Although the Veteran reported that he was medically retired, it appears that the cause of his retirement was, at least in part, based on nonservice-connected conditions, as the Veteran’s respiratory disabilities began to require part-time external oxygen near the time that he stopped working in 2014. As to the Veteran's mental ability, the evidentiary record does not illustrate a deficit due to his service-connected disabilities, nor has the Veteran contended an impairment in his mental ability. The Veteran’s mental status is routinely described as normal on medical evaluation and he is generally noted to be fully alert and oriented and able to live independently. The Veteran’s skilled work history that reflects an aptitude for learning, training, and communicating with others, without noted social deficits, indicates that the Veteran would very likely be able to transition with relative ease into a separate, less-skilled line of work that is better suited to his physical limitations. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, to the extent possible, the Board finds that the Veteran is capable of full-time work that would result in income at the level of substantial gainful employment. For example, there are jobs that can be performed from home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, and would allow the Veteran to switch positions at will in order to maximize his comfort and would not require prolonged typing. These kinds of jobs would allow the Veteran to take breaks as needed. Additionally, the Veteran appears capable of work which would allow the Veteran to alternate between sitting and standing and would not require continuous typing or writing, such as certain cashier positions, or work as a library or museum attendant. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment. The Veteran is competent to address his observed symptoms; however, a determination regarding TDIU is to be made by the adjudicator. The Veteran has submitted statements indicating that he is fully disabled due to his service-connected disabilities, but he included consideration for his nonservice-connected respiratory disabilities relating to his need for external oxygen and associated symptoms, which cannot be considered herein. Furthermore, the record suggests that the Veteran has considered only his ability to perform his old profession as a contractor/supervisor for Boeing, and not his capacity for performing any other line of substantially gainful employment. Accordingly, his statements are of lessened probative value. In March 2017, a treating physician submitted a letter indicating that the Veteran is completely unable to work due to numerous conditions, specifically citing to oxygen-dependent emphysema, as well as severe arthritic changes affecting major joints in his body. The treating physician’s remarks are similar to those he has made in various treatment notes on medical evaluation. The doctor stated that the Veteran’s conditions severely limit what the Veteran can do and even how long he can stay in any single position. This doctor appears to be familiar with the Veteran’s functioning; however, his assessment clearly gives prominent consideration to the Veteran’s nonservice-connected emphysema, which is not to be considered for purposes of a TDIU rating. As such, this opinion is of little probative value. The Board finds that the Veteran is not precluded from all forms of substantially gainful employment and, therefore, is not entitled to referral for an extraschedular TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38C.F.R. §3.102. Accordingly, referral for an extraschedular TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.