Citation Nr: 20032420 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 11-08 827 DATE: May 7, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow suitable forms of substantially gainful employment due to her service-connected disabilities. CONCLUSION OF LAW The requirements for entitlement to a TDIU rating, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a), (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 2003 to December 2003. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing in this Veteran’s case was held in July 2013 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran’s claim was remanded by the Board in June 2018 to obtain an updated vocational rehabilitation folder, as well as an updated VA Form 21-8940. Now associated with the Veteran’s claims file is an August 2016 VA Form 28-1902b Counseling Record – Narrative Report. Additionally, it is noted in the record that as the Veteran has not worked in the last five years, information for an updated VA Form 21-8940 could not be provided. See November 2018 Report of General Information. Thus, to the extent possible, the Board finds that its June 2018 remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to TDIU The question before the Board is whether the Veteran’s service-connected disabilities, namely her spine and lower right/lower left peripheral neuropathy disabilities preclude her from securing or following substantially gainful employment. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful employment. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful employment as a result of a service connected disability provided that if there is only one such disability, this disability shall be ratable at 60 percent or more; 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). Here, the Board notes that the Veteran does not meet schedular criteria for a TDIU for the period on appeal, as she is rated at 40 percent for her spine disability, 10 percent for her lower right peripheral neuropathy disability, and 10 percent for her lower left peripheral neuropathy disability. The combined rating is 50 percent. See December 2019 Rating Decision. Thus, the Veteran does not have one service-connected disability rated at 60 percent or more, and while the Veteran’s spine disability is rated at 40 percent disabling, there is not sufficient additional disability to bring her combined rating to 70 percent or more. Id. Nonetheless, when a claimant does not meet the minimum rating requirements of 38 C.F.R. § 4.16 (a) for TDIU on a schedular basis, a veteran can still establish a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16 (b). An extraschedular rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. However, the Board may not grant an extraschedular TDIU in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director of Compensation Service. See Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). As to whether TDIU is warranted on an extraschedular basis, the Board notes the procedural aspects surrounding the Veteran’s claim. Specifically, the Board remanded the Veteran’s TDIU claim in February 2014, and in so doing referred TDIU to the Director of Compensation Service (DCS) for consideration of assignment of an extraschedular rating as the record indicates a period of unemployment since approximately 2006. See 38 C.F.R. § 4.16 (b). The DCS determined that extraschedular TDIU was not warranted in this Veteran’s case in opining that the totality of the evidence of record does not support a finding that the Veteran is precluded from securing or following substantially gainful employment as a result of her service-connected disabilities. The DCS relied upon the July 2012 VA examiner’s medical opinion that the Veteran is still capable of sedentary work. See March 2015 DCS Advisory Opinion; July 2012 VA examination (“I do feel that she would be able to work in a sedentary setting.”). The Board finds that as the Veteran’s claim was previously referred to the Director of Compensation Service for extraschedular consideration, and as the DCS opined that an extraschedular evaluation is not warranted, the Board now has jurisdiction address entitlement to TDIU in this case. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The July 2012 VA examiner noted that while the Veteran would be unable to perform any moderate or strenuous physical activity, she is still able to perform work in a sedentary setting. See July 2012 VA examination. The July 2012 VA examiner’s medical findings mirror the other objective medical findings of record, to include the more recent medical findings, as the Veteran’s spine disability was reexamined for purposes of assessing the severity level in adjudicating her increased rating claim. See November 2019 VA examination; see also July 2008 VA examination. The November 2019 VA examiner noted that the Veteran’s spine disability likely impacts her ability to lift, pull, or push heavy objects due to pain; however, she could be retrained to do work that involves both sitting and standing at will. Id. With respect to the Veteran’s lower right and lower left peripheral neuropathies, the November 2019 VA examiner opined that those service-connected disabilities do not impact the Veteran’s ability to work. While nearly all of the objective medical evidence of record finds that the Veteran is not precluded from doing desk/sedentary work due to her service-connected spine disability, the aforesaid medical opinions do not consider the type of work/occupation that this particular Veteran would be able to obtain and maintain, given her circumstances. The Court has held that because VA does not define "sedentary employment" in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). In Ray v. Wilkie, the Court held that "[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to": (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 (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, "[b]y discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." Id. at 62. As to the Veteran’s education, skills, and training, the record reveals that she successfully obtained a high school diploma, an associate’s degree, and currently holds a valid certified nursing assistant (CNA) license; however, due to her service-connected spine disability the Veteran is no longer capable of maintaining employment as a CNA. See August 2016 Counseling Record – Narrative Report. There is evidence that the Veteran is pursuing a degree in computer programming and has received college credits in doing so. See December 2015 VA Form 21-674; see also March 29, 2018 VA treatment record ("I only have 2 semesters left for my degree and I'm not going to keep putting this off because I really want to achieve this goal I set for myself."). The Veteran’s civilian work history reveals experience in customer service, sales, and transactions (cashier). Id. The August 2016 VA vocational rehabilitation counselor noted that given the Veteran’s prior education, work experience, and interest in the area of business management, the Veteran would be able to find suitable employment as either an accountant, auditor, or management analyst despite the limitations imposed by her service-connected spine disability. Id. As to the Veteran’s physical abilities, the August 2016 VA vocational rehabilitation counselor noted that the Veteran is able to be on her feet standing and walking for no longer than 4 hours, may occasionally be able to lift 20 pounds, and up to 10 pounds more or less frequently. The Veteran was noted as having physical restrictions with the following: pushing and pulling movements involving both the arms and the legs, crouching or stooping, climbing and balancing, to include on stairs or ladders, kneeling or crawling, to include overhead or above the shoulder level. No other impairments to employment were noted relative to the Veteran’s physical limitations. Id. The Veteran’s physical limitations, as detailed in the August 2016 VA counseling report, are confirmed by the VA objective medical examinations of record noting the same. Due to the aforesaid physical limitations, the Veteran was found to be at a disadvantage in terms of being able to find suitable employment. Id. As to whether the Veteran has the mental ability to perform an occupation that wouldn’t conflict with, or otherwise exacerbate, her aforementioned physical limitations, the Board does not find any evidence of record to support a finding that the Veteran would not be able to adapt to change, handle work place stress, or get along with coworkers due to her service-connected spine disability. Relative to the Veteran’s pursuit of a computer programming degree, VA treatment records indicate that she does not have any identified barriers to learning, as she can read, write, and is receptive to learning. See November 8, 2018, March 29, 2018 VA treatment record(s); December 2015 VA Form 21-674. The record reveals that the Veteran has filed claims for entitlement to service connection for acquired psychiatric disabilities. As those claims were ultimately denied, Service connection is not in effect for a psychiatric disorder and those claimed for conditions, to include any associated diagnoses and relating symptoms, to go along with the effects they may have on the Veteran’s ability to function, may not be considered by the Board in deciding the Veteran’s TDIU claim. See 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also August 2016 Counseling Record – Narrative Report (noting alcohol/substance abuse). The Board acknowledges the Veteran’s lay testimony as to her difficulty in obtaining employment, to include having been unemployed since approximately 2006. See January 2007 Statement in Support of Claim; November 2018 Report of General Information. On this point, the Board is reminded that the question presented is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While there is no dispute that the Veteran's service-connected spine disability significantly impacts her ability to obtain and maintain employment that would require her to lift, stand, pull or otherwise exert herself physically for long periods of time, the Board finds that the preponderance of the evidence weighs against the claim for an extra-schedular TDIU. To point, the objective medical evidence of record, her acquired transferrable skills from previous work experiences, as well as her educational history, to include the recent progress she has made towards obtaining a degree in computer programming, a degree which aligns with the August 2016 VA Counseling Record – Narrative Report determination as to the types of employment that would be suitable for the Veteran given her physical limitations, weigh against finding that her service-connected spine disability precludes her from obtaining and maintaining all suitable forms of gainful employment. Accordingly, the Veteran's claim for TDIU, to include on the basis of an extraschedular evaluation, is denied. Karen J. Alibrando Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.