Citation Nr: 21000044 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-31 575 DATE: January 4, 2021 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 July 1969 to November 1970. This matter is on appeal of a December 2010 rating decision. The Veteran’s claim for TDIU was received in April 2010, indicating that the Veteran was disabled as of August 2009. The issue was remanded in a Board of Veterans’ Appeals (Board) decision in March 2018. The Board found that the Veteran’s TDIU claim was inextricably intertwined with the Veteran’s post-phlebitic syndrome of the right lower extremity, which claim required further development. The remand order provided the Veteran the opportunity to submit additional evidence and directed the Veteran to be provided a VA examination, if warranted. Additional evidence was received thereafter, and the Veteran underwent a VA examination in late March 2018. 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 has alleged that he is unable to work primarily due to the deterioration of his right leg disability. The record indicates that the Veteran retired after 36 years as a train engineer because the USA Railroad Retirement Board considers him to be permanently disabled. He has indicated that he is unable to sit, stand, or walk for prolonged periods. The Veteran contends that he has no educational or vocational skills beyond what he gained as a train engineer and that, unless a job was specifically created for him, he is not employable. The Veteran has also reported experiencing hearing loss and tinnitus, indicating that he has difficulty hearing the television and conversing on the telephone. 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 post-phlebitic syndrome of the right lower extremity (formerly rated as chronic venous insufficiency of the right leg) at 40 percent; tinnitus at 10 percent; bilateral hearing loss at 0 percent; and a scar of the right lower extremity associated with post-phlebitic syndrome at 0 percent, for a combined rating of 50 percent. 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. The Veteran was found to be occupationally disabled by the USA Railroad Retirement Board as of August 2009 due to pain in his right leg. This determination relates only to the Veteran’s past work as a train engineer and is not determinative of any VA finding. In October 2009, a private physician indicated that the Veteran was permanently unable to return to his past work as an engineer. The examiner provided a partial residual functional capacity (RFC) assessment, indicating that the Veteran could stand and walk for less than 2 hours and sit for at least 6 hours during a workday. A January 2010 railroad medical evaluation noted that the Veteran had varicose veins present on the right lower extremity with no ulcers, no brawny edema present, and no stasis dermatitis, bilaterally. In a January 2010 Disability Briefing document, private examiners found the Veteran to be disabled noting that he would be able to perform less than the full range of sedentary work, citing to definitions and regulations used in disability determinations made by the Social Security Administration (SSA). The examiners noted the Veteran could occasionally lift and carry up to 20 pounds, and frequently lift and carry up to 10 pounds. They further stated the Veteran could stand and walk for less than 2 hours and sit at least 6 hours in an 8-hour workday. The examiners further stated that the Veteran was to avoid pushing and pulling with his lower extremities and generally had the ability to occasionally perform postural functions, and frequently to constantly perform manipulative functions, but must avoid extreme heat and only be exposed to moderate hazards. Although a response to a records request from SSA indicates that they have no medical records relating to the Veteran, it is noted that VA and SSA use different definitions and standards for determining disability. As such, VA also has different standards for assessing disability than the January 2010 evaluators. Additionally, the evaluators failed to provide a rationale for all the assessed limitations. It is unclear how the environmental and manipulative limitations addressed by the evaluators relate to a service-connected disability. TDIU claims may consider only limitations associated with service-connected disabilities and opinions without rationales are not probative. Therefore, this assessment regarding the Veteran’s ability to work is unpersuasive. This assessment was also inconsistent with the findings of a separate physical examination provided by the Railroad Retirement Board in January 2010. This examiner noted some scars and varicosities on the Veteran’s right leg, but found no edema, despite the Veteran having his leg in a dependent position for 4 hours from the time he started driving to the clinic to the examination. The Veteran was found to have a normal gait, and to be able to tandem walk, walk on heels, walk on toes, hop, bend, squat, arise from squatting, dress and undress, get up from his chair, and get on and off the examination table. The examiner concluded that no exertional, postural, manipulative, visual, communicative, or environmental limitations were established. In an August 2010 opinion, a VA examiner indicated the Veteran’s lower extremity had no cyanosis, clubbing, or pedal edema. The examiner noted the Veteran had multiple varicosities in the right lower extremity from the knee down including the right foot. He found no erythema or edema with varicosities mildly tender to palpation. On musculoskeletal examination, the Veteran was described as grossly intact with a normal gait. The Veteran reported a daily flare-up of approximately 20 minutes of increased pain during which time he cannot perform prolonged standing or walking. The examiner stated that it is at least as likely as not that the Veteran would do well in a sedentary job with no prolonged standing or walking, and no prolonged sitting without the ability to elevate his right leg, stating that the Veteran’s symptoms of right leg edema are significantly decreased when the Veteran sits down and elevates his legs. The Board finds this opinion to be probative of the Veteran’s functioning at the time, which supports that the Veteran was physically capable of work, as the examiner is a medical professional who provided a rationale for his conclusions, which is generally consistent with the objective findings on concurrent examination. The Veteran underwent another VA examination in September 2016. Notes reflect that the Veteran reported that his aching leg becomes more painful when sitting more than 30 minutes, when standing more than 20 minutes, and when walking more than one-eighth of a mile. It was noted that when he is driving, he must stop about every 30 minutes to stretch his leg and that he must rest for about 15 to 20 minutes after walking one-eighth of a mile. It was noted that the Veteran had some degree of right lower extremity edema that is chronic. It was further reported that his edema increased with standing, and improved with elevation, but that it does not fully resolve with elevation. In addition, the examiner noted the Veteran’s lower right extremity had findings and/or signs indicating persistent stasis pigmentation, intermittent edema of extremity, persistent edema that is incompletely relieved by elevation of extremity, and persistent edema. The examiner wrote that the Veteran’s vascular condition did not indicate a functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner stated that the Veteran could at least as likely as not be employed in a sedentary job with limited postural activity, standing for no more than 15 minutes at a time, driving and walking only short distances, and the ability to change positions every 30 minutes. Although a determination regarding TDIU is reserved to the adjudicator, this opinion is probative evidence of the Veteran’s ability to perform substantially gainful employment, as the examiner was a qualified medical professional and his assessment was supported by the objective medical examination. The examiner’s opinion is also supported by other statements of record reflecting the Veteran’s level of functioning, including that the Veteran is independent in activities of daily living, and has maintained the capacity for activities such as fishing and motorcycle riding, and walking/working outdoors. Subsequent to the March 2018 Board remand, the Veteran underwent a VA examination for his artery and vein condition later in the same month. The Veteran reported that he retired in 2009 due to a chronic ache in his right lower leg. He stated that the ache becomes painful with sitting for more than 30 minutes, with standing for more than 20 minutes and with walking more than one-eighth of a mile. He reported that when he is driving, he must stop about every 30 minutes to stretch his leg. When he is walking, he reported that he must stop and rest for about 15 to 20 minutes every one-eighth of a mile. The examiner indicated that the Veteran’s vascular condition does not cause functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. He was noted to experiencing aching and fatigue with prolonged standing and walking. The examiner documented the Veteran had a moderately antalgic gait. The examiner described the service-connected scar as stable and nontender. The examiner stated that the Veteran’s vascular condition impacts his ability to work due to a decreased capacity to stand and walk. This finding is consistent with the assessment of the 2016 VA examiner and does not indicate reduced functioning of such a severity to preclude the Veteran from substantially gainful employment. In December 2018 and May 2019, the Veteran was noted to be independent in activities of daily living and instrumental activities of daily living. During consultation for a nonservice-connected condition in May 2019, the Veteran reported working outside and referenced his ability to walk around without problems. As to the Veteran’s hearing loss and tinnitus, the Veteran underwent a VA audiological examination in August 2010 with the audiologist later opining that the Veteran may have difficulty in a work environment in which auditory communication is critical, stating that that the Veteran should do better wearing hearing aids and taking advantage of visual cues. The Veteran reported some difficulty hearing on the telephone and when watching television. The examiner stated that tinnitus impacts the Veteran’s daily life. Treatment notes in January 2017 show that the examiner documented the Veteran was able to hear normal conversational tone/loudness. The Veteran reported worsening hearing loss but denied experiencing tinnitus in January 2018 on audiological examination. The Veteran was prescribed hearing aids, for which he was fitted in March 2018. It was stated that the Veteran would always have word understanding problems due to the nature of hearing loss, but he showed improvement with amplification, and it was noted that problems will be greater with background noise compared to quiet listening situations. The Veteran had an unremarkable examination of the ears and his hearing aids were found to be performing within the targeted range. Based on the evidence of record, the Board acknowledges that the Veteran experiences pain and aching in the right lower extremity that reduces his ability to stand and walk for prolonged periods and has caused an antalgic gait. The evidence shows that the Veteran can experience discomfort due to prolonged sitting. These limitations can be accommodated by a low-exertional occupation that does not require prolonged standing or walking and allows for position changes at will to adjust for comfort. Additional physical limitations suggested in the record do not include an adequate rationale demonstrating how such limitations are associated with the Veteran’s right lower extremity disability. Additionally, while the Veteran has some hearing loss, he experiences improvement with use of hearing aids and is able to hear conversational tones. It appears that his hearing limitations can be accommodated by allowing the Veteran the use of visual cues when communicating, as opposed to a position that is based on telephone communication, such as a telemarketer. The preponderance of the evidence does not indicate that tinnitus or the Veteran’s scar on the right leg present vocational restrictions for the Veteran. He has repeatedly denied experiencing tinnitus and his scar is stable and nontender. The limitations discussed herein are supported by statements in the record reflecting the Veteran’s activity levels, which do not show that the Veteran is precluded from substantially gainful employment. The Veteran’s wife stated in a September 2010 letter that the Veteran enjoys playing pool, riding his motorcycle, and fishing. The Veteran has maintained independence in activities of daily living and instrumental activities of daily living. More recent records from 2019 indicate that the Veteran reported his ability to walk around and work outdoors. He has denied the use of medication and has not required emergency or inpatient treatment during the appeals period. The preponderance of the evidence is against a finding that the Veteran does not have the physical ability to perform substantially gainful employment. Regarding the Veteran’s education, training, skill, and work history, the Veteran has reported that he did not receive a secondary education after high school. However, his long work history as a train engineer suggests the Veteran to possess the capacity for learning and adaptability that allow an individual to successfully maintain a skilled occupation such as train engineer over the course of four decades. While the Veteran could not physically continue his work as a train engineer, the record suggests that his work experience would be an asset to him in seeking other work. As to the Veteran's mental ability, the evidentiary record does not illustrate a mental deficit due to his service-connected disabilities, nor has the Veteran contended that he has an impairment in his mental ability. He is described as fully alert and oriented in all spheres with intact judgment. Treatment notes indicate that he has generally denied changes in mood or memory, sleep problems, depression, suicidal thought, loss of interest in usual activities, or other emotional problems. As stated, the Veteran is noted to be independent in activities of daily living. The Veteran’s work history reflects that he is reliable and has an aptitude for learning and communicating with others, without noted social deficits, indicating that the Veteran would likely be able to transition into a separate, less-skilled line of work that is better-suited to the Veteran’s 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, 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 assembly/manufacturing jobs that would allow the Veteran to sit and switch positions at will in order to maximize his comfort and avoid prolonged sitting, standing, or walking. Additionally, the Veteran appears capable of work which would allow the Veteran to alternate between sitting and standing and would involve face-to-face interaction so as to allow for the use of visual cues when interacting with others, such as certain cashier positions, or work as a library or museum attendant. As a result of his decades-long history of working for a railroad, he could also work as a train dispatcher, as he would know the ins and outs of the movement of trains, and remote dispatcher jobs would allow the Veteran to work from home and sit and stand as needed. The Veteran is competent to address his observed symptoms; however, a determination regarding TDIU is to be made by the adjudicator. The Veteran and his wife have submitted statements indicating that he is fully disabled due to his service-connected disabilities, but they are not supported by the preponderance of the evidence. The Veteran and his wife stated that the Veteran’s employment history includes only 36 years of work as a train engineer since his separation from service, and that he has received no advanced education since high school. They contend that these facts would support that the Veteran would be unable to adapt to a different line of work. Rather, the Board finds that the Veteran’s ability to maintain a long and consistent work history shows that he maintains the mental capacity and skills to adapt to separate, low-skilled occupations that would accommodate the Veteran’s physical limitations and would require minimal training and no advanced level of education. The Veteran’s activity levels, as described above, also weigh against the severity of limitation alleged by the Veteran and his wife. The Board finds that the preponderance of the evidence is against a finding that Veteran is 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); 38 C.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.