Citation Nr: 21003977 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-34 752 DATE: January 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to October 1979 with subsequent service in the National Guard. The Board of Veterans’ Appeals (Board) most recently remanded the claim in August 2020 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Factors to be considered in determining whether unemployability exists are the veteran’s education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran’s age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s current service-connected disabilities are: (1) lumbar spine degenerative changes, rated 10 percent from December 2, 2015, 40 percent from July 31, 2017, and 20 percent from April 8, 2019; (2) tinnitus, rated 10 percent from July 21, 2015; (3) left knee degenerative joint disease (DJD), rated 10 percent from December 2, 2015; (4) intermittent radicular symptoms, right lower extremity associated with lumbar spine degenerative changes, rated 10 percent from December 2, 2015; (5) intermittent radicular symptoms, left lower extremity associated with lumbar spine degenerative changes, rated 10 percent from December 2, 2015; (6) right foot, second toe middle phalanx fracture residuals at a noncompensable (0 percent) rating from October 3, 1979: and (7) bilateral hearing loss with a noncompensable (0 percent) rating from July 21, 2015. From October 3, 1979, the Veteran’s combined disability rating was 0 percent; from July 21, 2015, the Veteran’s combined disability rating was 10 percent; from December 2, 2015, the Veteran’s combined disability rating was 40 percent; from July 31, 2017, the Veteran’s combined disability rating was 60 percent; and from April 8, 2019, the Veteran’s combined disability rating was 50 percent. See generally 38 C.F.R. § 4.25, Table I - Combined Ratings Table. Therefore, the Veteran does not meet the schedular criteria for a TDIU except for the period from . It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). In August 2020, the Veteran’s claim was referred to the Director of the Compensation Service. In August 2020, the Director of Compensation Service issued an Administrative review that found the Veteran’s service-connected disabilities did not inhibit the Veteran’s ability to perform sedentary work based on numerous medical findings. In August 2016, VA received the Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). He indicated that he had two years of college level education, and that he performed truck driving from 2009 to 2014. The Veteran completed truck driving school and electronic technician school. He further indicated that he became too disabled to work in December 2014 due to his heart disability and back disability. The Board notes that the Veteran is not service-connected for a heart disability. During a September 2015 VA audiological examination, the Veteran reported difficulty hearing sounds at a normal volume. During a February 2016 VA examination for back conditions, the VA examiner found that the Veteran’s service-connected degenerative arthritis of the spine did not impact his ability to work. A July 2016 private treatment note revealed that the Veteran did woodworking. Also, he had persistent low back pain, although it did not limit him in activity. In August 2016, the Veteran underwent a VA audiological examination. The Veteran was diagnosed with sensorineural hearing loss in the right ear and mixed hearing loss in the left ear. The examiner found that the Veteran’s bilateral hearing loss did not impact ordinary conditions of daily life, including his ability to work. During a September 2016 VA primary care note, the Veteran reported that he had been applying for work as a truck driver. During an April 2018 VA audiology examination, the Veteran reported that his tinnitus was bothersome when trying to sleep. Also, he reported that he could not hear in most situations due to his bilateral hearing loss. In June 2018, a private physician noted that the degenerative arthritis of the lumbar spine caused severe disabling pain. During the November 2018 VA audiological examination, the VA examiner found that the Veteran’s bilateral hearing loss and tinnitus impacted his ability to work. The Veteran reported difficulty hearing in general and reported having to max out the volume on his television to hear it. Also, his service-connected tinnitus was manifested by a constant ringing. A January 2019 VA back conditions examination revealed that the Veteran’s service-connected degenerative arthritis of the spine manifested symptoms of constant dull achiness located in the middle of his back. He experienced increase pain with twisting, heavy lifting, sneezing, coughing, as well as prolonged periods in a stationary position. The VA examiner found that the Veteran’s back condition did not impact his ability to work. In a February 2019 statement, the Veteran noted that he had constant back pain that worsened with movement. He also reported weakness, fatigability, and incoordination. The Veteran stated that he was unable to stand or walk for periods longer than 15 minutes. He reported collapsing after standing for long periods of time. He noted that his back disability prevented him from working. He stated that pain medication greatly reduced his back pain: however, his pain was not totally absent. A July 2019 VA examination for heart conditions noted that the Veteran’s non-service-connected coronary artery disease impacted his ability to work. He had limitations with heavy physical labor and stressful circumstances. The July 2019 VA examiner found that the Veteran’s left knee disability did not impact his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). During an October 2019 VA primary care appointment, the Veteran stated that he was fired from his truck driving position on January 8, 2015. During his May 2018 Board hearing, the Veteran asserted that he is unemployable as a result of his service-connected lumbar spine disability, left knee disability, hearing loss, and tinnitus. He stated that he could no longer work as a truckdriver as his heart conditions prevented him from maintaining a commercial driver’s license. Also, his service-connected back disability and left knee disability prevented him from working jobs that required sitting and lifting. Further, he noted that his hearing disability negatively impacted obtaining employment. Once again, the Board notes that the Veteran is not service-connected for a heart condition. He reported that his heart condition prevented him from lifting weight as he would faint if he did anything strenuous. The Veteran stated that he failed the required treadmill test to keep his truck driving license in 2013 due to his heart disability. Subsequently, he had a heart attack. The Veteran stated that he did not work due to his heart issues and because he was caring for his wife. The Veteran reported that he obtained an Associate’s degree in electronics. In October 2016, the Veteran’s Social Security Administration (SSA) records showed that the Veteran had been in receipt of disability benefits from December 8, 2014 for ischemic cardiomyopathy. The Veteran’s SSA application noted that he began working as a semi-truck driver in 1987 and became too disabled to work due to ischemic heart disease, diabetes mellitus, essential hypertension, and obesity in December 2014. A July 2015 activities of daily living (ADL) assessment for SSA noted that the Veteran was able to complete self-care and home tasks, but did them slowly and with several breaks. Although, he did not do physical work for very long as he became short of breath, dizzy, had chest pain, and became sick to his stomach. In May 2019, the United States Court of Appeals for Veterans Claims (Court) has held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran’s history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types 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. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). In Ray v. Wilkie, the Court explained that substantially gainful employment contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. In reviewing the noneconomic factors including the Veteran’s work history, education, skill, and training, and his physical and mental ability to perform work activities, the record shows that the Veteran meets the requirements to be able to work. Based on the above, the Veteran has worked as a semi-truck driver from 1987 to 2014, performing driving and loading duties. As for his education, the Veteran obtained a high school diploma, an Associate’s degree in electronics, and completed professional courses for semi-truck driving and as an electronic technician. Therefore, the Veteran has indicated he is able to obtain the skills, knowledge, and training to obtain full-time employment. Next, the Board will address whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue. The evidence shows that Veteran’s service-connected disabilities impair his earning capacity in civilian occupations. Notably, VA examinations found that the functional impact of the Veteran’s back disability was pain and stiffness with walking, standing, climbing stairs, lifting, and carrying heavy objects. Nevertheless, the February 2016 and January 2019 VA examiners found that the Veteran’s back condition did not impact his ability to work. Although the Veteran noted in February 2019 that his back disability prevented him from working, he also stated that pain medication greatly reduced his back pain. As noted above, the July 2019 VA examiner found that the Veteran’s left knee disability did not impact his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). Further, the Veteran asserted that his hearing loss and tinnitus prevented him from obtaining substantially gainful employment as he needed people to communicate with him loudly. However, the combined disability rating compensates him for these impairments. See 38 C.F.R. § 4.1. The medical opinion evidence from the VA examiners essentially reflects that the Veteran’s service-connected disabilities do not preclude him from securing and following a substantially gainful occupation; the documented findings indicate that the Veteran continued to be able to perform physical work duties, even considering the symptoms of his service-connected disabilities. Although the Veteran stated that he stopped working due to his service-connected disabilities, he also stated on multiple occasions that his non-service-connected heart disabilities prevented him from working. During his May 2018 Board hearing, the Veteran reported that his heart condition prevented him from lifting weight as he would faint if he did anything strenuous. The Veteran stated that he failed the required treadmill test to keep his truck driving license in 2013 due to his heart disability. Subsequently, he had a heart attack. The Veteran stated that he did not work due to his heart issues and because he was caring for his wife. His October 2016 SSA application noted that he was unable to work due to his heart disability. His August 2016 VA Form 21-8940 noted that he was unable to work, in part, due to his heart disability. Further, a July 2019 VA examination for heart conditions noted that the Veteran’s non-service-connected coronary artery disease impacted his ability to work. He had limitations with heavy physical labor and stressful circumstances. Therefore, the evidence demonstrates that the Veteran continued to possess the skills necessary to be employed as a truck driver, or similarly qualifying employment, if he so chose. Furthermore, in July 2015, the Veteran reported that he was able to perform his activities of daily living. Also, since December 2014, the Veteran engaged in woodworking. Although the Veteran noted that he had constant back pain that worsened with movement, he was unable to stand or walk for periods longer than 15 minutes, and he reported collapsing after standing for long periods of time, SSA records showed that he bathed, dressed, toileted, ambulated, prepared food, ate, shopped, maintained his home, drove his own car, performed housekeeping, and handled his finances independently. To conclude the analysis, the Board will address whether the Veteran has the mental ability to perform the activities required by the occupation at issue. 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. An August 2020 VA treatment note indicated that the was awake, alert, and oriented in all spheres without distress. In May 2019, a VA physician examined the Veteran’s mental status and found that he was cooperative with normal mood, affect, and memory. He was oriented in all spheres. No difficulties with his employer or co-workers had been noted. Therefore, the Board finds that the Veteran obtained educational and real-world experiences that would provide a meaningful advantage at the physical and sedentary assertional level if the Veteran sought to be employed. Of note, the Veteran has stated on multiple occasions that he was unable to work due to his non-service-connected heart disability. Specifically, he was unable to perform the required stress test to maintain his truck driving license. Although the Veteran believes that he cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the Board finds that the more probative evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent, credible and probative opinion on a matter as complex as to what is the objectively shown functional impairment caused by the service-connected disabilities and what is the impact of those disabilities on his ability to attend to daily activities including capacity for occupational activities. Thus, while the Veteran’s opinions and observations are competent evidence that has been given full consideration by the Board, the Board finds that his statements are not entirely consistent with the objective medical evidence regarding the nature and degree of limitation of the Veteran’s service-connected disabilities as it pertains to the Veteran’s capacity for gainful employment. The Board specifically finds that the evaluation of the actual functional impact of his disorders on the Veteran’s capacity to engage in occupational activities from a clinical standpoint is a matter squarely within the realm of expert clinicians, and not lay expertise. In any event, any probative value of the Veteran’s own conclusions is outweighed by that of the opinions provided by the more recent VA medical professionals, who reviewed the claims folder and found that the Veteran’s service-connected disabilities did not render him incapable of obtaining and retaining employment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the evidence is against any finding that his service-connected disabilities caused him to be unable to secure or follow a substantially gainful occupation; as such entitlement to a TDIU rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.