Citation Nr: 21002210 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 10-22 506 DATE: January 13, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to a service-connected disability is denied. FINDINGS OF FACT 1. The Veteran’s sole service-connected disability is degenerative arthritis of the spine rated as 20 percent disabling, with a combined disability rating of 20 percent. 2. The most probative evidence of record indicates that the Veteran’s service-connected degenerative arthritis of the spine (back disability) did not preclude him from substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU, on an extraschedular basis, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1964 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a previously assigned 10 percent evaluation for the Veteran’s service-connected back disability. In November 2009, the Board remanded the increased rating matter to the RO for additional development. In August 2011, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of that hearing has been associated with the claims file and reviewed. In January 2012, the Board again remanded this matter to the RO for additional development. In a March 2012 rating decision, the RO re-characterized the Veteran’s service-connected lumbosacral strain as degenerative arthritis of the spine and assigned a 20 percent rating, effective September 30, 2004 (the date of his increased rating claim). Since the Veteran was presumed to be seeking the maximum benefit allowed by law and regulation, the additional assignment of benefits in the March 2012 rating decision was not considered to have resolved the Veteran’s claim at that time. AB v. Brown, 6 Vet. App. 35 (1993). Thereafter, in a May 2012 decision, the Board denied entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine. However, the Board determined that the derivative issue of entitlement to a TDIU was properly raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue for additional development in its May 2012 decision. In a separate July 2013 decision, the Board denied entitlement to a TDIU. In September 2013, the Board sent the Veteran a letter notifying him of the opportunity to receive a new hearing and/or a new decision due to the Board’s prior decision being identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ during the August 2011 hearing. See National Org. of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013). The Veteran elected to have the prior decision vacated and a new one issued in its place. Accordingly, in April 2014, the Board vacated its May 2012 decision and remanded the appeal for additional development on the issue of entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine. In April 2015, the Veteran sought service connection for bilateral hearing loss and tinnitus. The RO denied both claims in May 2015 and the Veteran submitted a notice of disagreement (NOD) in December 2015. In July 2016, the Veteran was issued a hearing clarification letter which notified him that the VLJ who had conducted the August 2011 hearing was no longer employed by the Board. Pursuant to 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707, the VA inquired whether the Veteran would like to be scheduled for another hearing before a different VLJ. The Veteran elected to be scheduled for a new videoconference hearing in an August 2016 written response to the VA. In September 2016, the Board remanded the matter to the RO to schedule the Veteran for a videoconference hearing. Thereafter, in October 2016, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of that hearing is also of record. Per the October 2016 hearing transcript, the Veteran claimed that he was unemployed and had been for several years due to his back disability. A TDIU claim is part of an increased rating claim and is properly before the Board when such claim is raised by the record. Rice, supra. Accordingly, a “Rice” TDIU claim has been raised by the record in this case during the pendency of the Veteran’s claim. In a March 2017 decision, the Board, in part, remanded the issue of the Veteran’s service connection claim for bilateral hearing loss and tinnitus for further development and issuance of a statement of the case (SOC). Additionally, the Board denied entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine for the entire period on appeal in the March 2017 decision. Thus, the increased rating claim for degenerative arthritis of the spine is no longer on appeal before the Board. However, the Board determined in the March 2017 decision that the derivative issue of entitlement to a TDIU was inextricably intertwined with the pending service connection claims for bilateral hearing loss and tinnitus. As such, the issue of a TDIU was remanded along with the remaining service connection claims and the RO was instructed to obtain a referral of entitlement to a TDIU from the Director of VA’s Compensation and Pension Service for consideration of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In September 2017, the RO issued a SOC on the Veteran’s service connection claims for bilateral hearing loss and tinnitus, which continued the denial of both issues. The Veteran did not perfect his appeal on these claims by submitting a VA Form 9 and therefore the service connection claims for bilateral hearing loss and tinnitus are no longer on appeal before the Board at this time. In July 2020, the Director of VA’s Compensation and Pension Service issued an advisory opinion for consideration of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In August 2020, the RO promptly issued a supplemental statement of the case (SSOC) continuing to deny the Veteran’s TDIU claim. As the actions specified in the March 2017 remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Lastly, the Board notes a subsequent development letter was sent to the Veteran on July 15, 2019. This correspondence requested the completion and return of a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. To date the requested documents have not been returned, nor is there a record of a previous submission of a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. Therefore, the Board will proceed with a determination of the Veteran’s claim for a TDIU based on the record before it at this time. The TDIU Claim The record shows that the Veteran retired from work in 2005. At that time, he had a combined rating of 20 percent for degenerative arthritis of the spine. Although the Veteran does not meet the schedular criteria for a TDIU at any time during the appeal, he has asserted that he is unemployable due solely from his service-connected back disability. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. In reaching that determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. The question before the Board is whether the Veteran was, at any time during the pendency of this appeal, unemployable solely by reason of his service-connected degenerative arthritis of the spine, currently rated as 20 percent disabling, while taking into account his educational and occupational background. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation solely by reason of his service-connected degenerative arthritis of the spine. The evidence shows that the Veteran completed two years of college and has had additional vocational training in business through the American Management Association and Dale Carnegie Institute. He has worked in sales and marketing for most of his career with his final position as a vice president of a Jacuzzi company, from 1993 to 2005. In a February 2010 VA examination report, the Veteran reported that he retired in 2005 due to medical reasons. The examiner indicated that the Veteran’s low back condition had a significant effect on his usual occupation with decreased mobility problems with lifting and carrying, difficulty reaching, and pain. In a February 2012 VA Back Conditions Disability Benefits Questionnaire (DBQ), the VA examiner indicated that the Veteran’s back condition impacted his ability to work, as he was unable to lift heavy objects or walk any significant distance. It is important for the Veteran to understand that while his back disability may negatively impact his ability to lift heavy objects or walk significant distances, these facts do not, in and of themselves, indicate a total unemployability picture because there are jobs that do not require lifting heavy objects or walking significant distance for which the Veteran may be qualified for, especially considering his employment and education history and extensive experience in sales and marketing. In this regard, a TDIU is warranted only when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities alone, 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 (2017). Thus, a TDIU benefit is granted only when the evidence establishes that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment, which has not been demonstrated in this case. With the above in mind, in an August 2012 VA General Medical DBQ, the examiner noted the Veteran had multiple medical conditions upon examination including an eye condition, lumbar spine degenerative osteoarthritis, diabetes mellitus, Type II with retinopathy and nephropathy, depression, hypothyroidism, hypertension, total prosthetic left knee replacement, prosthetic hip replacement, prosthetic left shoulder replacement, history of left ankle osteomyelitis, and chronic venous insufficiency of the left lower leg. As such, the examiner noted the Veteran had significant gait/mobility problems due to his nonservice-connected disabilities of a left knee replacement, right hip replacement, degenerative arthritis of the right knee and chronic venous insufficiency of the left lower leg, in addition to the Veteran’s service-connected back disability. Here, the VA examiner specifically opined that it was less than 50 percent likely that the Veteran’s unemployability was related solely to his service-connected degenerative arthritis of the lumbar spine. The August 2012 VA examiner indicated, while taking into account solely the lumbar spine condition, that the Veteran would be employable in a sedentary type job, such as a desk clerk, with no lifting, bending, or climbing ladders or stairs required. Additionally, the examiner noted that there must be no excess walking and the Veteran must be able to stand up for a few minutes every 30 minutes while at his job. In a July 2014 VA examination for the Veteran’s back disability the Veteran reported constant low back pain aggravated by prolonged standing, sitting and walking. He stated that his lower back pain interferes with his sleep, mood, social and physical activity. The examiner noted that his gait was normal but there was evidence of pain with weight-bearing. There was no additional loss of function or range of motion after repetitive use testing and no neurological abnormalities or incapacitating episodes noted. Specifically, the examiner described the actual functional impact that the Veteran’s back condition had on his ability to work and opined that the Veteran would be able to do a sedentary job with restrictions such as frequent breaks to change positions. Further review of the Veteran’s VA treatment records provides probative evidence against the Veteran’s claim that his lumbar spine disability alone prevents him from maintaining or securing substantially gainful employment at any time during the appeal. See e.g., Tampa VAMC Geriatric Psychiatric Consult Note dated September 25, 2017 (examiner reported the Veteran’s last employment was in 2007 when he was VP for a Jacuzzi company but the company closed the division); Tampa VAMC Gastroenterology Consult Note dated July 16, 2019 (Veteran reports his current employment status as working as a “business consultant”). Furthermore, numerous private treatment records associated with the claims file contained findings for many nonservice-connected disorders including hip, shoulder, knee, ankle, hypertension and psychiatric disabilities that allow the Board to form an overall disability picture that simply does not support the Veteran’s contention that he is unemployable solely due to his back disability at any time during the pendency of this appeal. For example, in an August 2006 private vocational evaluation report, the examiner indicated that the Veteran had significant vocational handicaps as a result of injuries he sustained in post-service accidents, which are unrelated to his service-connected back disability. See Private Vocational Evaluation by S.R.C., Inc. dated August 30, 2006. The private vocational examiner found that the Veteran’s physical injuries included left shoulder, left knee, right knee, left ankle, a sleep disorder and psychiatric impairments, which, taken together, prevented him from returning to the types of employment he previously held. Id. Importantly, neither the Veteran, nor the private examiner, discussed the Veteran’s service-connected back disability as an impairment that was used in the assessment of the Veteran’s vocational evaluation profile. Id. Here, the August 2006 private vocational report provides probative evidence against the Veteran’s claim that his inability to maintain and secure gainful employment was ever caused solely by his service-connected lumbar spine condition. In addition to the above, records from the Social Security Administration (SSA) listed a primary diagnosis of left shoulder injury with arthroscopy and secondary diagnosis of obesity on his disability determination with an onset date of July 2006. Tellingly, these records do not report the Veteran’s back disability as being the cause of his inability to work at that time. In July 2020, an advisory opinion on entitlement to a total disability rating based on individual unemployability on an extra schedular basis was received from the Director of Compensation Service. The advisory opinion from the Director of Compensation Service found that the Veteran’s service-connected disability did not prevent him from obtaining and maintaining gainful employment. Specifically, the opinion stated that the preponderance of the evidence did not support the contention that the Veteran’s service-connected lumbar spine condition resulted in occupational and social impairment with reduced reliability and productivity or worse. The opinion considered all the available evidence of record and concluded that the evidence did not show marked interference with employment or frequent periods of hospitalization due to the Veteran’s service-connected condition lumbar spine disability. The Board agrees. Throughout the appeal period, the Veteran has indicated he retired in 2005 due to orthopedic problems making traveling and standing more difficult. Disabilities that made employment more difficult were his total left knee replacement, total right hip replacement, left shoulder replacement, left ankle osteomyelitis, chronic left ankle/leg swelling after osteomyelitis, vascular problems in the left leg, left leg infection, and his service-connected chronic low back pain. Despite his complaints, the Veteran reported that he could walk up and down the block, walk around the mall, dress himself, bathe himself and drive a car. The Veteran also indicated that he could not sit for long periods of time and needed to stretch and move around after 30 minutes. He reported having chronic pain daily, mostly in the low back, knees, and left ankle. In this case, the Board observes that the Veteran is competent to report symptoms associated with his service-connected lumbar spine disability as well as its effects on his daily life and occupation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on the matter at issue, which is whether he is able to secure substantially gainful employment due solely to his service-connected lumbar spine disability. See e.g., Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board has determined that the most probative evidence that specifically addresses the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected lumbar spine disability weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The August 2012 VA examiner’s opinion that it was less than 50 percent likely that the Veteran’s unemployability was related solely to his service-connected degenerative arthritis of the lumbar spine was based on his review of the Veteran’s entire claims file and provided a detailed rationale for his conclusions, considering only impairment from the Veterans service-connected disability. Nieves-Rodnguez v. Peake 22 Vet. App. 295 (2008). The examiner took into account the Veteran’s lay statements, previous medical reports and an in-person physical exam and highlighted the fact that the primary reason the Veteran left his last employment in 2005 had to do with mobility/orthopedic problems in his knees, hips and left ankle. The July 2014 examiner’s opinion was consistent with and supports the August 2012 opinion on the matter at issue. In contrast, the examiner in the August 2006 private vocational evaluation based his opinion on impairment caused by the Veteran’s numerous nonservice-connected disorders and did not discuss the Veteran’s service-connected back disability in any detail. The Court has held that medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In recognition of the severity of and impairment caused by his service-connected back disability, the Veteran is currently rated as a combined 20 percent disabled. Based on the evidence discussed above, the Board finds that a preponderance of the evidence of record does not demonstrate that the Veteran’s service-connected back disability alone actually precludes him from engaging in substantially gainful employment. Thus, entitlement to a TDIU rating due to the Veteran’s service-connected back disability is not warranted. For the foregoing reasons, the claim for entitlement to a TDIU rating must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.