Citation Nr: 21061463 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-15 759 DATE: October 4, 2021 ORDER 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from January 1, 2013 to May 1, 2014, and from October 13, 2016 to the present, is denied. 2. Entitlement to referral for a TDIU rating from May 2, 2014 to October 12, 2016 is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a schedular TDIU were not met from January 1, 2013 to May 1, 2014, or from October 13, 2016 to the present. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. 2. The criteria for referral for an extraschedular TDIU rating were not met from May 2, 2014 to October 12, 2016. 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 CONCLUSIONS The Veteran served on active duty from October 1990 to October 1993, from May 1995 to July 2002, from August 2002 to July 2003, and from March 2008 to December 2012. The Veteran had a video conference hearing before the undersigned Veterans Law Judge in August 2019. This matter was previously denied by the Board of Veterans' Appeals (Board) in a June 2020 decision, along with multiple separate increased rating claims. The Veteran appealed the decision to the United Stated Court of Appeals for Veterans Claims (Court). In May 2021, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Partial Remand (Joint Motion), which vacated and remanded only the issue of TDIU for providing an inadequate statement of reasons or bases for its denial. The Joint Motion was granted by the Court in June 2021. Within the Joint Motion, the parties stated that the Board erred when it failed to adequately address whether Veteran's service-connected disabilities rendered him incapable of obtaining and maintaining substantially gainful employment, and erred by focusing its analysis exclusively on whether the Veteran was unable to work due to the individual service-connected back disability and a nonservice-connected leg disability, rather than assessing the severity of his combined service-connected conditions, including sleep apnea, and headaches. The Veteran has alleged that his combined service-connected disabilities have prevented him from being able to obtain and sustain substantially gainful employment since his separation from service. At the August 2019 hearing, the Veteran reported that he cannot sit or stand for long periods due to back pain and that he uses a cane for ambulation. He indicated that sustained physical activity can lead to incapacitating episodes. 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 have and have not met the schedular criteria for TDIU during appeal period. The Veteran is service-connected for sleep apnea with small calcified granulomas and peripheral noncalcified nodules, rated as 50 percent disabling from January 1, 2013; mild diffuse disc bulge and mild degenerative disc disease at L4-5, rated as 40 percent disabling from January 1, 2013, 10 percent disabling from May 2, 2014, and 20 percent disabling from October 13, 2016); tinnitus, rated as 10 percent disabling from January 1, 2013; right foot stress fracture, rated as 0 percent disabling from January 1, 2013; hypertension, rated as 0 percent disabling from January 1, 2013; gastroesophageal reflux disease (GERD), rated as 0 percent disabling from January 1, 2013; and tension headaches, rated as 30 percent disabling from January 1, 2013 and 10 percent disabling from May 2, 2014. Based upon the above, the Veteran's combined disability rating during the relevant appeal period is 80 percent from January 1, 2013, 60 percent from May 2, 2014, and 70 percent from October 13, 2016. As such, the Veteran has met the schedular criteria for TDIU consideration from January 1, 2013 to May 1, 2014, and since October 13, 2016. 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 and 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 for the period from May 2, 2014 to October 12, 2016. "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 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 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 she personally observed or described; this includes recalling what she 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 the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The reasons follow. In a May 2014 statement, the Veteran stated that he cannot sit for longer than 20 minutes, and he cannot stand for longer than 30 minutes without suffering excruciating pain. He stated that this situation makes it hard for him to look for work that will not cause additional pain and discomfort. In March 2017, the Veteran stated that he is unable to work because of the pain in his back. He reiterated at the hearing that his back caused him to be unable to work. A December 2012 x-ray revealed the Veteran to have mild degenerative disc disease of the lumbar spine. That month, the Veteran denied any problems with vocation or employment within one week of his retirement from service. The Veteran listed a future goal to find post-military employment the week that he retired from service. These statements show that the Veteran believed that he could obtain and maintain substantially gainful employment after leaving service. The record does not document significant exacerbations of his condition between December 2012 and January 2013 to show that he suddenly became unemployable due to his service-connected conditions during that period. An August 2013 Disability Benefits Questionnaire (DBQ) from a treating provider documented that the Veteran's back caused him to be in extreme pain when standing for long periods of time, and he was described as having to shift regularly when sitting or his pain would worsen. In a May 2014 VA examination report, the examiner documented the Veteran's back had increased pain with prolonged standing and walking. The examiner stated there may be some limitations with activities that would require repetitive twisting and bending due to pain. An October 2016 VA examiner opined that the Veteran's back condition would have moderate impact for physical or sedentary employment because of pain with prolonged sitting, standing, and walking. Private treatment notes in 2018 and 2019 indicate that the Veteran had full strength and normal reflexes, but that he used a cane with an antalgic gait. The Veteran was given recurrent epidural injections that provided him some relief for pain in his lower back, which was noted to interfere with daily chores, exercise, sleep, relationships, and walking. VA treatment records during this period state that the Veteran was walking every day for exercise. In May 2018, the Veteran reported that his typical day includes some light yardwork and housework. Despite ongoing pain symptoms and the use of a cane to assist in ambulation, the Veteran has generally recorded full strength, intact sensation, and normal reflexes on recurrent VA physical examinations. At his 2019 hearing the Veteran reported experiencing daily incapacitating episodes, caused by physical activity such as grocery shopping. However, incapacitating episodes are not reflected in the Veteran's treatment records. He has not required urgent or inpatient treatment for his lumbar spine disability. Additionally, he has not required surgical intervention during the relevant period. As to the Veteran's headaches, a July 2013 DBQ stated that the Veteran's headaches do not impact his ability to work. It was noted that the Veteran reported that he previously experienced frequent headaches but that he had his wisdom teeth removed and the headaches stopped. On VA examination in May 2014, the Veteran reported that he developed headaches during service. He reported that he had daily headaches, but with no associated symptoms. He stated that they can last up to a few hours without medication, but only last 10 to 15 minutes with the use of medication. He reported that he is able to function during headaches and had no limitations on his activity. The Veteran's headaches were found not to limit his ability to work. The Veteran was prescribed prophylactic medication for his headaches in June 2016. Three months later, the Veteran reported dramatic improvement with his headaches, stating that he previously needed abortive medication daily, but now only needed it "once in a blue moon." He stated that he was extremely satisfied with no complaints or side effects from the medication. The Veteran underwent a VA examination for assessment of his headaches in October 2016. The Veteran reported experiencing a headache approximately once per week. The examiner stated that the Veteran's headaches would have a mild impact for physical or sedentary employment due to lost time. During treatment in May 2019, the Veteran reported a 20-year history of headaches and indicated that they are the same as they have been for years, but more frequent. He indicated that he gets great relief of his headaches with Topamax. At his August 2019 hearing, the Veteran reported daily headaches lasting one to two hours at a time, but that he does not think about them at the time because he is so used to dealing with them on a regular basis. Throughout the relevant period, the Veteran has been found to be alert and oriented with intact neurological and cognitive functioning on physical examination. The Veteran was assessed with mild obstructive sleep apnea following a polysomnography in September 2012. He was issued a CPAP by VA in January 2013. A private DBQ for sleep apnea completed in July 2013 indicated that the Veteran's condition causes him to feel tired throughout the day. The granulomatous tissue in the Veteran's left lung was found not to limit the Veteran's ability to work. On VA examination in May 2014, the Veteran reported that he feels tired in the mornings. However, it was noted that the Veteran sleeps seven to eight hours per night and has no limitations on his activities. It was noted that sleep apnea did not impact the Veteran's ability to work. The Veteran underwent another VA examination for assessment of his sleep apnea in July 2019. As to the functional impact of the Veteran's condition, it was noted that the Veteran is "doing well but still has some issues with daytime fatigue." Although the Veteran has reported that he is unemployable due to his combined impairments, the record does not reflect that the Veteran's tinnitus or his disabilities that are rated at a noncompensable level cause him significant functional impairments. On VA audiological examination in May 2014, the Veteran's tinnitus was described as mildly bothersome and was found not to interfere with the Veteran's daily activities or his ability to work. On a separate examination for the Veteran's hypertension in the same month, it was noted that hypertension does not impact his ability to work. He has managed his hypertension with medication, but has not required more intrusive treatment. A July 2013 DBQ stated that the Veteran's GERD does not impact his ability to work. It was also noted on VA examination in May 2014 that the Veteran's GERD is managed conservatively with medication and the condition does not impact the Veteran's ability to work. An August 2013 DBQ stated that the Veteran's right foot disability does not impact his ability to work. The Veteran underwent a VA examination for assessment of his right foot disability in May 2014. The Veteran was noted to have a history of stress fracture in the right foot, dating back to 1990. It was documented that the Veteran experienced limitations relating to a recent nonservice-connected tibia/fibula fracture that he suffered in March 2014 from which he was still recovering. However, it was noted that the Veteran's right foot disability did not impact the Veteran's ability to work. The preponderance of the evidence is against a finding that the Veteran is precluded from securing or following substantially gainful employment due to his service-connected disabilities. Despite the Veteran's pain symptoms, he has reported regularly walking for exercise and has generally maintained full strength, intact sensation, and normal reflexes. The Veteran has had a good response to treatment for his headaches. Examiners have indicated that headaches would have no more than a mild impact on the Veteran's employment due to lost time. At his August 2019 hearing, the Veteran indicated that headaches do not preclude him from employment, stating that he could "probably deal with them" in a sedentary occupation. The Veteran reported that he gets seven to eight hours of sleep per night and, despite some fatigue, he has routinely been found to be fully alert and oriented with intact cognitive functioning. The record does not reflect significant functional limitations caused by tinnitus, hypertension, GERD, or his history of right foot fracture. The Veteran's service-connected disabilities have not required urgent or inpatient treatment and he has remained independent in his activities of daily living. Accordingly, the weight of the evidence supports a finding that the Veteran is capable of substantially gainful employment. Regarding the Veteran's education, training, skills, and work history, the Veteran has reported that he is a high school graduate with some limited college coursework during his time in service. The Veteran has work experience as a senior non-commissioned officer (NCO) in the Army and National Guard. Overall, the Veteran's education and approximately 15 years of military experience demonstrates a capacity for learning, training, and adaptability that would not be hindered by his service-connected disabilities. These attributes would facilitate the Veteran's return to substantially gainful employment. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences pain and reduced mobility due to his service-connected disabilities. While the Veteran uses a cane for ambulation, he is noted to walk regularly for exercise, and he has maintained the ability to drive. Also, treatment records predominantly reflect the Veteran to have full strength, intact sensation, and normal reflexes. He has reported his daily routine, to include light housework and yardwork. Accordingly, the totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level, so long as he has the ability to change positions between sitting and standing for comfort, as needed, and can use a cane for brief periods of ambulation. The Department of Labor's Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering this definition for purposes of deciding the Veteran's claim. The longitudinal record indicates that the Veteran is capable of sedentary work with a sit/stand option and the use of a cane for ambulation. Accordingly, the weight of the evidence shows that the Veteran was physically capable of performing substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran has consulted a psychologist through VA to assist in coping strategies for pain control; however, the record does not show that the Veteran's service-connected abilities have impacted his cognitive functioning. The Veteran's service-connected disabilities have not been shown to cause the Veteran communication deficits. He has consistently demonstrated appropriate behavior and has repeatedly been described as pleasant. Even considering the Veteran's fatigue and headache symptoms, the Veteran has regularly been found to be fully alert and oriented, with intact neurological and cognitive functioning. As the Veteran's service-connected disabilities do not cause him mental limitations, the weight of the evidence shows that he is mentally capable of performing substantially gainful employment. 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 work that would result in income at the level of substantially gainful employment. For example, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities would have precluded him from jobs that can be performed at home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, would require minimal exertional activity, and would allow the Veteran to sit or stand as needed. Similarly, a customer service agent interacts with customers to handle complaints, process orders, and answer questions. These positions can often be performed from home, with limited physical activity, and would allow the Veteran to sit or stand as needed. Additionally, the Veteran's service-connected disabilities would not preclude him from jobs that involve data entry. With data entry, the Veteran is primarily responsible for entering data into a system. These jobs can usually be done from home without significant training. These occupations require very little exertional effort and could be performed while sitting or standing. Such a position utilizes rudimentary computer skills that can be learned quickly without advanced training or experience; however, the Veteran's experience as an NCO indicates that the Veteran likely possesses the basic computer skills necessary for such a position. The above occupations would allow for the use of a cane for any brief periods of ambulation. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could have performed. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to the service-connected disabilities. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from all forms of substantially gainful employment due to service-connected disabilities and, therefore, is not entitled to a TDIU rating or entitled to referral for extraschedular consideration of a 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, entitlement to a TDIU rating and referral for consideration of an extraschedular TDIU rating are denied. 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.