Citation Nr: 21062410 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-61 972 DATE: October 7, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) from June 7, 2012, to December 5, 2012, is denied. Entitlement to a TDIU from December 5, 2012, to August 23, 2015, is granted. Entitlement to a TDIU from August 23, 2015, to December 19, 2017, is denied. FINDINGS OF FACT 1. From June 7, 2012, to December 5, 2012, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) and the preponderance of the evidence shows that he did not meet the 38 C.F.R. § 4.16(b) criteria for referral of his claim to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration because the evidence does not substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. 2. From June 7, 2012, to August 23, 2015, the Veteran's service-connected disabilities precluded substantially gainful employment. 3. From August 23, 2015, to December 19, 2017, the preponderance of the evidence shows that the Veteran was gainfully employed. CONCLUSIONS OF LAW 1. From June 7, 2012, to December 5, 2012, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. From December 5, 2012, to August 23, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. From August 23, 2015, to December 19, 2017, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1988 to May 2011 with the award of the Combat Infantry Badge due to service in Southwest Asia during the Persian Gulf War. In a March 2019 decision issued by a Veterans' Law Judge other than the undersigned, the Board of Veterans' Appeal (Board) denied the Veteran's claim for a TDIU. The Veteran appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the March 2019 Board decision. In June 2020, the Board remanded the claim for a TDIU. In a February 2021 rating decision, the regional office (RO) granted the Veteran a TDIU effective from December 19, 2017. In May 2021, the Board remanded the claim for a TDIU prior to December 19, 2017, because the TDIU claim had been pending since June 7, 2012. Concerns raised in the JMR and post-Remand compliance As to the concerns raised in the JMR and post-Remand compliance, the Board finds that it substantially complied with the Remand and the concerns raised by the JMR. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board has reached this conclusion because while the appeal was in Remand status the regional office (RO) attempted to obtain and associate with the record the "e VistA Imaging" records referenced in the January8, 2015, and October14, 2015, VA record entries but without success, in June 2021 the Veteran was notified that these record could not be found, and in July 2021 the Veteran notified the RO that he did not have these records. See 38 U.S.C. § 5103A; Stegall, supra; D'Aries, supra. Therefore, the Board finds that further delay by remanding the appeal to try to obtain the records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The TDIU Claim The Veteran claims, in substance, that he is entitled to a TDIU at all times since he filed his claim on June 7, 2012. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. 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 occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In this regard, 38 C.F.R. § 4.16(a) provides that when earned annual income exceeds the poverty threshold, marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). However, to date, neither the Court nor the Secretary has provided a definition as to what constitutes a "protected work environment." Nonetheless, the Board observes that the examples of "protected environment" used in the text of 38 C.F.R. § 4.16(a) are the family business and sheltered workshop. In the case of a family business, it is common for an employer to hire a relative to fill a position, not because the relative is necessarily the most capable or efficient prospective employee, but for reasons of affection or obligation. Furthermore, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. Id. 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, 529 (1993). It is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As to a TDIU under 38 C.F.R. § 4.16(b) the Board notes that in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. Therefore, the next question for the Board to consider is when, if ever, the Veteran met the criteria for a referral under 38 C.F.R. § 4.16(b) to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration. In this regard, the Board notes that the appropriate standard in considering whether a remand for referral of consideration of extraschedular TDIU under 38 C.F.R. § 4.16(b) is found in Ray v. Wilkie, 31 Vet. App. 58, 65-66 (2019). In this regard, the Court in Ray held that "the decision... to refer [a case for extraschedular consideration under § 4.16(b)] and to award a [TDIU] rating are fundamentally different." 31 Vet. App. 58, 65 (2019). The Court held in Ray that "the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66; id. at 66 n. 38 (explaining that this standard (for initial extraschedular TDIU referral decision) was similar to and merely elaborates on the well-grounded claim standard used in Stanton v. Brown, 5 Vet. App. 563,570 (1993)). 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, 529 (1993). In this regard, it is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to the facts surrounding the appeal, in his claims for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in December 2012, January 2015, and January 2021, the Veteran reported that he became too disabled to work and had not worked full time because of his service connected disabilities since he separated from service in May 2011. He also reported that his prior work experience was as an infantry soldier and later a recruiter will on active duty in the United States Army. His highest level of education was 1-year of college. The Board also notes that VA treatment records show in July 2016 that the Veteran told the provider that he was driving a truck for the Department of Transportation. Thereafter, at the August 2016 VA back examination the Veteran told the examiner that he was self-employed doing personalized hauling and delivery of gravel from a local rock quarry. At an April 2017 VA examination, the Veteran reiterated that he was self-employed and noted that his GERD impacted the productivity of his work. In a June 2017 statement, the Veteran reported that he worked at most 10 to 20 hours per week and that he had made two thousand dollars in the prior 12months. In December 2019 the Veteran told a private healthcare provider that he was retired. In July 2020 the RO received a document entitled Business Closure Form, City of Little Rock Treasury Division, reported that the Veteran's trucking business "ItseBitse Trucking," last operated on December 18, 2017. Also in July 2020 the RO received from the Veteran letters from the Internal Revenue Service, United States Department of the Treasury (IRS), which showed that for the tax period December 31, 2014, the Veteran filed as married/jointly with an income of $40,331.00; for 2015 he again filed jointly/married with an income of $47, 497.00; for 2016 he filed jointly/married with an income of $41.855.00; and for 2017 he filed as single with an income of $19,991.00. In a January 2021 statement, the Veteran reported that he started a lawncare/trucking company in December 2015. He next reported that he could not make enough money in the one year that you had the company and you filed for bankruptcy because he couldn't pay the truck insurance, gas, and food. The Veteran also reported that he needed help with running the company because he couldn't do the job yourself due to his service-connected disabilities to include his back, tailbone, and wrist disabilities. Thereafter, the Veteran notified the RO that he hasn't worked his truck service since December 2017 and sold the truck shortly before bankruptcy on October 16, 2018. In a subsequent February 2021 statement, the Veteran reported that from June 2011 through December 2015 he had no employment and from August 23, 2015, through December 18, 2017, he was self-employed with a landscaping/trucking business. Lastly, the record shows that the Veteran from June 7, 2012, to December 19, 2017, was service-connected for the following disabilities: Tension headaches rated as 10 percent disabling from November 16, 1998, and noncompensable from June 1, 2011; Left ring finger arthritis rated as noncompensable from November 16, 1998; Back disability rated as noncompensable from November 16, 1998, 10 percent disabling from June 1, 2011, and 20 percent disabling from May 20, 2014; Sleep apnea rated as 50 percent disabling from June 1, 2011; Left carpal tunnel syndrome rated as 0 percent disabling from June 1, 2011, and 20 percent disabling from January 23, 2015; Tinnitus rated as 10 percent disabling from June 1, 2011; Bilateral hearing loss rated as noncompensable from June 1, 2011; Right hand metacarpophalangeal joint arthritis rated as noncompensable from June 1, 2011; Post-operative scar-right carpal tunnel syndrome rated as noncompensable from June 1, 2011; Right upper extremity radiculopathy rated as noncompensable from June 1, 2011; Gastric ulcer with hiatal hernia rated as 20 percent disabling from December 5, 2012; Right lower extremity radiculopathy rated as 10 percent disabling from May 30, 2014; and Left lower extremity radiculopathy rated as 10 percent disabling from May 30, 2014. In summary, the Board finds that the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) from June 7, 2012, to December 5, 2012, but met it from December 5, 2012, to December 19, 2017, because starting on December 5, 2012, he had one disability rated as 40 percent or higher and he had a combined rating of 70 percent or higher. Therefore, the Board's analysis will address the following time periods-from June 7, 2012, to December 5, 2012, from December 5, 2012, to August 23, 2015, and from August 23, 2015, to December 19, 2017. I. From June 7, 2012, to December 5, 2012 As to the June 7, 2012, to December 5, 2012, time period, the next question for the Board to consider is, when, if ever, his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation such that the criteria for referral of his claim to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration have been met because there's sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); Ray, supra. Initially, the Board notes that the Veteran does not claim, and the record does not show, that he was working from June 7, 2012, to December 5, 2012. However, the Board finds that even if it conceded that the Veteran had not worked from June 7, 2012, to December 5, 2012, this fact alone is not enough to meet the criteria for referral of his claim because the Board finds that the preponderance of the evidence shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities. See 38 C.F.R. § 4.16(b); Owens, supra; Ray, supra. The Board has reached this conclusion because extraschedular consideration is only warranted when the adverse symptomatology caused by a Veteran's service-connected disabilities are not adequately compensated for by the rating criteria. 38 U.S.C. § 1155; 38 C.F.R. § 4.1(providing, in substance, that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity). In this regard, the Board finds that the most probative evidence of record in the form of the Veteran's VA examinations show that the adverse symptomatology caused by his service-connected tension headaches, left ring finger arthritis, back disability, sleep apnea, left carpal tunnel syndrome, tinnitus, bilateral hearing loss, right hand metacarpophalangeal joint arthritis, post-operative scar-right carpal tunnel syndrome, and right upper extremity radiculopathy are both contemplated and consider by the rating criteria. See Owens, supra. The Board also finds that this evidence shows there is no reasonable possibility that he is unemployable by reason of his service-connected disabilities. Id; Also see Ray, supra. Specifically, the Board finds it significant that, while at the January 2011 VA audiological examination the Veteran reported that his hearing loss and/or tinnitus caused trouble hearing people talk and adversely impacted his concentration/attention because the ringing in his ears was annoying, the examiner opined that they had no impact on his occupational activities. This medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Likewise, the Board finds it significant that at the January 2011 VA general examination the examination showed and/or the examiner opined as follows: the Veteran had no objective adverse symptomatology due to the left ring finger arthritis, left carpal tunnel syndrome, right hand metacarpophalangeal joint arthritis, post-operative scar-right carpal tunnel syndrome, and right upper extremity radiculopathy; the Veteran was still employed full-time in the Army as a recruiter and he had lost only 3-weeks of work in the past 12-months; as to the effects of his disabilities on usual occupation, the back caused increased absenteeism and the headaches as well as the sleep apnea had no effect; and, as to the effects of his disabilities on daily activities, the Veteran reported that his back disorder made him unable to work in the yard and the headaches as well as the sleep apnea had no effect. Similarly, the Board finds it significant that in a March 2012 addendum the VA examiner reported, as to the Veteran's tension headaches, that they are non-prostrating because he is still able to continue activities with headaches, such as household chores, picking up child from school, and taking care of his son. Additionally, treatment records show that the Veteran's was given a breathing assistance device like a continuous airway pressure (CPAP) machine to treat his sleep apnea. Tellingly, as to his service-connected tension headaches, left ring finger arthritis, back disability, right hand metacarpophalangeal joint arthritis, left carpal tunnel syndrome, and right upper extremity radiculopathy, the Board finds that at all times during the appeal the Veteran has competently reported on having pain, tenderness, lost motion, swelling, tingling, and/or numbness (i.e., observable adverse symptomatology) (see Davidson, supra.) and the medical record show his adverse symptomatology was limited to, in substance, pain, tenderness, lost motion, swelling, tingling, numbness, and/or no adverse symptomatology. See, e.g., VA examinations dated in January 2011 and addendum dated in March 2012. The Board also finds that this evidence shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities. See Ray, supra; Owens, supra. Similarly, as to the Veteran's service-connected post-operative scar-right carpal tunnel syndrome, the Board finds that at all times during the appeal the Veteran did report having any symptoms and the medical record show his adverse symptomatology was limited to, in substance, no symptoms. See, e.g., VA examinations dated in January 2011 and addendum dated in March 2012. The Board also finds that this evidence shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities. See Ray, supra; Owens, supra. Furthermore, as to the Veteran's service-connected sleep apnea, tinnitus, and bilateral hearing loss, the Board finds that at all times during the appeal the Veteran has competently reported on having difficulty sleeping, ringing in his ears, and difficulty hearing (i.e., observable adverse symptomatology) (see Davidson, supra.) and the medical record show his adverse symptomatology was limited to, in substance, difficulty sleeping, using a breathing assistance device like a CPAP machine, ringing in his ears, and difficulty hearing. See, e.g., VA examinations dated in January 2011 and addendum dated in March 2012. The Board also finds that this evidence shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities. See Ray, supra; Owens, supra. Lastly, the Board finds it significant that the adverse symptomatology reported by the January 2011 and March 2012 VA examiners (i.e., tension headaches, left ring finger arthritis, back disability, sleep apnea, left carpal tunnel syndrome, tinnitus, bilateral hearing loss, right hand metacarpophalangeal joint arthritis, post-operative scar-right carpal tunnel syndrome, and right upper extremity radiculopathy) is contemplated by the rating criteria and limited to the criteria for a 50 percent level of disability for sleep apnea, 10 percent and noncompensable levels of disability for tension headaches, noncompensable and 10 percent levels of disability for a back disability, a 10 percent level of disability for tinnitus, and noncompensable levels of disability for bilateral hearing loss, left ring finger arthritis, left carpal tunnel syndrome, right hand metacarpophalangeal joint arthritis, post-operative scar-right carpal tunnel syndrome, and right upper extremity radiculopathy. See 38 C.F.R. §§ 4.71a, 4.85, 4.87, 4.97, 4.118, and 4.124a, Diagnostic Codes 5010, 5230, 5238, 5248, 5242, 6100, 6260, 6847, 7805, 8100, and 8513. Given the above complaints and medical history, the Board finds that the preponderance of the evidence shows that the 50 percent, 10 percent, and noncompensable ratings he receives for the disabilities and compensates him for the adverse symptomatology reported by the January 2011 and March 2012 VA examiners as well as the adverse symptomatology documented in his medical records and/or reported by the appellant. Id. The best evidence in this case provides evidence against this claim because it shows that there is not a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. See Ray, supra; Owens, supra. The finding above is not meant to suggest that the Veteran does not have problems because of his service-connected disabilities. If there were no problems, there would be no basis for the current compensation levels from June 7, 2012, to December 5, 2012. In this regard, it is important for the Veteran to understand that not all medical evidence in this case supports the current findings, let alone higher ratings. There is significant evidence in this case against the current findings. It is only with taking into consideration his complaints and all reasonable doubt that the current findings can be justified. The Board has considered above if the Veteran's claim should be referred to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration. However, the Board finds that the preponderance of the evidence shows that the adverse symptomatology caused by the Veteran's service-connected tension headaches, left ring finger arthritis, back disability, sleep apnea, left carpal tunnel syndrome, tinnitus, bilateral hearing loss, right hand metacarpophalangeal joint arthritis, post-operative scar-right carpal tunnel syndrome, and right upper extremity radiculopathy do not meet the criteria for referral for extraschedular consideration at any time from June 7, 2012, to December 5, 2012, because the preponderance of the evidence in the form of the above VA examinations shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities because his only adverse symptomatology is both contemplated and consider by the rating criteria. See 38 C.F.R. §§ 4.71a, 4.85, 4.87, 4.97, 4.118, and 4.124a, Diagnostic Codes 5010, 5230, 5238, 5248, 5242, 6100, 6260, 6847, 7805, 8100, and 8513; Owens, supra. Accordingly, the Board finds that the claim for a TDIU is denied at all times from June 7, 2012, to December 5, 2012. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; Owens, supra; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). II. From December 5, 2012, to August 23, 2015, and from August 23, 2015, to December 19, 2017 As noted above, the Veteran's TDIU claim has been pending since June 7, 2012, and the record shows that he meets the schedular requirements of 38 C.F.R. § 4.16(a) from December 5, 2012, because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher for the post-December 5, 2012, time period. Therefore, the next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment from December 5, 2012, to December 19, 2017. 38 C.F.R. § 4.16(a). a. From December 5, 2013, to August 23, 2015 As to the December 5, 2013, to August 23, 2015, time period, and the Veteran being able to work perform jobs that require sedentary employment, including his past employment as an Army recruiter as well as in non-sedentary employment such as his past employment as an Army infantry soldier, and other possible employment that could make use of his work experience and his 1-year of college, the Board finds that the record shows that the problems caused by his service-connected tension headaches, left ring finger arthritis, back disability, sleep apnea, left carpal tunnel syndrome, tinnitus, bilateral hearing loss, right hand metacarpophalangeal joint arthritis, right upper extremity radiculopathy, gastric ulcer with hiatal hernia, right lower extremity radiculopathy, and left lower extremity radiculopathy adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment due to the problems caused by his pain/discomfort, and interact effectively with co-workers and/or customers, and carry out the tasks required by employment due to problems with manual dexterity in both upper extremities. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected tension headaches, left ring finger arthritis, back disability, sleep apnea, left carpal tunnel syndrome, tinnitus, bilateral hearing loss, right hand metacarpophalangeal joint arthritis, right upper extremity radiculopathy, right lower extremity radiculopathy, and left lower extremity radiculopathy make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the problems caused his service-connected tension headaches, left ring finger arthritis, back disability, sleep apnea, left carpal tunnel syndrome, tinnitus, bilateral hearing loss, right hand metacarpophalangeal joint arthritis, right upper extremity radiculopathy, gastric ulcer with hiatal hernia, right lower extremity radiculopathy, and left lower extremity radiculopathy would make it very difficult to learn the new skills needed to work in most sedentary employments and thereafter interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran's service-connected disabilities prevented him from securing or following a "substantially gainful" occupation from December 5, 2013, to August 23, 2015, given his prior vocational history, work experience, his education, and the impact his service-connected tension headaches, left ring finger arthritis, back disability, sleep apnea, left carpal tunnel syndrome, tinnitus, bilateral hearing loss, right hand metacarpophalangeal joint arthritis, right upper extremity radiculopathy, gastric ulcer with hiatal hernia, right lower extremity radiculopathy, and left lower extremity radiculopathy would have maintaining sedentary employment and in non-sedentary employment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities rendered him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment at all times from December 5, 2013, to August 23, 2015, and the claim for a TDIU for this time period is granted. See 38 C.F.R. § 4.16(a). b. From August 23, 2015, to December 19, 2017 As to the August 23, 2015, to December 19, 2017, time period the record shows the Veteran was self-employed in a landscaping/trucking business. In this regard, the Veteran has never denied he was not employed; only that the employment was not gainful because he did ever earn enough to cover his business expenses and had to declare bankruptcy in 2017. In this regard, the record shows that in 2015 and 2016 the Veteran reported to the IRS that his joint income was $40,000 plus and in 2017 his individual income was $19,000. Tellingly, while the Board cannot tell from the existing record which part of the $40,000 plus income the Veteran and his wife reported to the IRS in 2015 and 2016 was solely from the appellant's landscaping/trucking business, the fact remains that the appellant reported the entire amount as joint income for these years and this amount is more than the poverty threshold. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Likewise, the Veteran's $19,000 plus income for 2017 is more than the poverty threshold. Id. Therefore, the Board finds that the work the Veteran performed from August 23, 2015, to December 19, 2017, when he had his own landscaping/trucking business cannot be considered marginal employment. See Owens, supra. Similarly, the Veteran does not claim, and the record does not show, that the appellant worked in a protected or sheltered environment from August 23, 2015, to December 19, 2017. See 38 C.F.R. § 4.16(a). In fact, since he worked for himself from August 23, 2015, to December 19, 2017, the Board finds that this protection could be afforded this Veteran. Therefore, the Board finds that the most probative evidence of record shows that the Veteran was gainfully employed at all times from August 23, 2015, to December 19, 2017. See Owens, supra. Accordingly, the Board finds that the preponderance of the evidence shows the Veteran's service-connected disabilities did not render him incapable of substantial gainful employment at all times from August 23, 2015, to December 19, 2017, and the claim for a TDIU for this period under 38 C.F.R. § 4.16(a) is denied. Likewise, because the Veteran was gainfully employed at all times from August 23, 2015, to December 19, 2017, in his own landscaping/trucking business, the Board finds that the preponderance of the evidence shows that his service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. See Ray, supra; Owens, supra. Therefore, the Board finds that the criteria for a referral of his claim to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration under 38 C.F.R. § 4.16(b) have not been met at all times from August 23, 2015, to December 19, 2017. Therefore, the claim is also denied under 38 C.F.R. § 4.16(b). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.