Citation Nr: 21063100 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-44 981 DATE: October 13, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected residuals of low back strain, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran's service-connected residuals of low back strain, rated 40 percent, is not shown to be of such nature and severity as to render him unable to secure and maintain regular substantially gainful employment; it is not shown to have required frequent hospitalization, or to have caused marked interference with employment, or have involved any other factors that would render application of regular schedular standards impractical. CONCLUSION OF LAW The schedular requirements for a TDIU rating are not met; and a TDIU rating on an extraschedular basis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a)(b). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1965 to September 1968. This matter is before the Board on appeal from a January 2016 Department of Veterans Affairs (VA) rating decision. In August 2019, the matter was remanded for additional development. Entitlement to a TDIU rating, to include on an extraschedular basis, is denied. The Veteran contends that since he left his last job in February 2003, his service-connected low back disability has prevented him from engaging in substantially gainful employment. A TDIU rating 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 (service-connected) disabilities, provided at least one 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's sole service-connected disability, residuals of low back strain, rated 40 percent, has not met the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a) at any time during the appeal period. Where the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be considered when a veteran is nonetheless unable to obtain and maintain a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See also Faust v. West, 13 Vet. App. 342, 356 (2000). Marginal employment (for purposes of 38 C.F.R. § 4.16) generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. 38 C.F.R. § 4.16(a). Substantially gainful employment contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)(citing 38 U.S.C. § 5103A(d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). Whether service-connected disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care providers. For a veteran to prevail on a claim for TDIU, the record must reflect circumstances that place the veteran's case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board finds that the preponderance of the evidence is against a finding that the Veteran has been unable to obtain and maintain a substantially gainful occupation due to his service-connected disability. Initially, the Board notes that in August 2019 the case was remanded to the AOJ for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU. Referral is made where a veteran, who is unemployable by reason of service-connected disabilities, fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Board is obligated to "explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage." Ray v. Wilkie, 31 Vet. App. 58 (2019). It is emphasized that a remand of the Board is a preliminary action and not a final, appealable determination. In August 2019, the Board did not make an explicit finding, either favorable or unfavorable, regarding whether TDIU is warranted. Also, as the CAVC recognized in Ray, the evidentiary standard for referring a case to the Director for consideration of extraschedular TDIU constitutes a lower threshold than for awarding an extraschedular TDIU. The determination to refer a case is a factual finding that does not bind the Board or require it to award an extraschedular rating. Nevertheless, the Board must still provide a full explanation for "deviating from its earlier referral decision", and this requirement appears to stem from the CAVC's concern for addressing inconsistencies in the record. The Board will now explain its seemingly divergent findings made at the referral stage as compared to the ultimate conclusion in this decision that an extraschedular TDIU rating is not warranted. In Ray, the CAVC essentially found that the initial referral decision by the Board addresses only whether there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. Here, as noted in the August 2019 Board remand, evidence in the file included November 2004, August 2011, and September 2015 VA examiners' opinions that the Veteran's back disability impacted his ability to work as he had decreased mobility, a lack of stamina, and weakness or fatigue, and it interfered with his ability to lift, carry, and bend; clinicians' opinions in September 2003, October 2004, June 2010, and May 2016 that the Veteran is permanently and totally disabled from gainful employment due to his back disability (and other disabilities); and Social Security Administration (SSA) records reflecting that he was awarded disability benefits in October 2004 based on his severe impairments of cervical and lumbar degenerative disc disease and degenerative joint disease in both knees. Read together, such evidence raises a reasonable possibility that the Veteran is unemployable due to service-connected disability; therefore, the Board referred the claim to the Director, Compensation Service. Recognizing that the Board is not obligated to defer to the findings of the Director (see Wages v. McDonald, 27 Vet. App. 233 (2015)), who in this case decided to not grant an extraschedular TDIU, on review of all the pertinent evidence the Board now finds that the evidence against an award of TDIU outweighs the evidence supporting it. The evidence demonstrates that the Veteran has numerous disabilities, both service-connected and nonservice-connected; however, considering only his service-connected residuals of low back strain (as required for purposes of a VA TDIU rating) , the Board finds that it does not preclude substantially gainful employment. Stated another way, he is not shown to be incapable of a regular gainful occupation despite the functional impairment due to his low back disability, alone. In his June 2018 TDIU application, the Veteran stated that he last worked full-time, and became too disabled to work, in January 2003. He stated that he left his self-employment because of his service-connected disability and had not tried to obtain employment since he became too disabled to work. He reported having a high school diploma and four years of college education. The question here, however, is whether his service-connected symptoms alone are of sufficient severity to prevent a gainful occupation. The Veteran's education, work history, and skills/training have been considered. In an August 2018 statement, his wife related that he was very limited in his abilities to drive for a length of time, hook up and unhook from trailers, and enter and exit the cab of a truck without struggles. Although requested (in a July 2018 AOJ letter), specific information regarding the number or hours worked per week, amount of time lost in the last 12 months of employment due to service-connected disability, and net and gross earnings for the last 12 months of employment were not provided/received. On April 2003 treatment, the Veteran reported that he worked for Campbell's Soup for a while, and had been driving trucks and self-employed for the previous 3 years. He reported that he had not worked since February 2003. The provider opined that due to degenerative disc disease and mild to moderate osteoarthritis of the lumbar spine, osteoarthritis of the cervical spine, and mild osteoarthritis of both knees, the Veteran may be able to sit for about 20 minutes at a time and for 2 to 3 hours per 8-hour period; he can stand on his feet for 10 to 15 minutes at a time; walking is limited to about 2 blocks but he does not want to walk without a cane; he has difficulty bending forward and lifting more than 20 pounds; and he has no problem carrying and handling objects, hearing, speaking, or traveling. In a September 2003 medical statement, the Veteran's treatment provider since May 2001 noted that the Veteran suffers with gouty arthritis, degenerative joint disease of the right knee, lumbosacral degenerative disc disease, migraine headaches, osteoarthritis, and chronic intractable pain, and he requires around-the-clock narcotics to control his pain. The provider opined that the Veteran can do no lifting, pulling, stooping, bending, squatting, or prolonged sitting or standing; he can do pushing over 10 pounds on an infrequent basis; and he is advised against heights and being around moving machinery. The provider opined that due to his chronic and progressive diagnoses the Veteran is permanently and totally disabled for gainful employment. On October 2004 VA treatment, the Veteran was noted to have chronic posterior neck pain, low back pain, and bilateral knee pain. He reported becoming increasingly disabled over the years to the point that he can only walk small distances inside his home and needs a wheelchair to go anywhere. His ambulation was noted to be limited by severe bilateral knee pain. He was noted to be unable to stand for more than 10 minutes due to low back pain, and he needed to stand every 10 to 15 minutes to relieve his back pain. X-rays were noted to show significant degenerative joint disease of both knees, degenerative disc disease of the mid and lower cervical spine, and advanced degenerative disease at the L5 level of the lumbar spine. The provider stated that the Veteran requires narcotics for pain control and is intolerant to anti-inflammatories due to renal effects. The provider opined that the Veteran is totally disabled as far as gainful employment. SSA records include an October 2004 decision that the Veteran has been disabled since February 2003 due to impairments which are considered to be "severe", including cervical and lumbar degenerative disc disease and degenerative joint disease in both knees. The decision noted that the medical evidence of record shows that the Veteran stopped working in February 2003 due to progressively worsening arthritis with neck, low back, knee, and hand pain. The decision stated that these impairments prevent the Veteran from performing more than a limited range of "sedentary" work. On November 2004 VA examination, the Veteran reported being in constant pain with no real relief, and the pain only goes away when he takes medications. He reported the pain is usually in the lower back but can be in the upper lumbar area as well. He reported that the back pain was aggravated by standing for more than about 10 minutes, any significant walking, or sitting down for more than about 30 minutes. He reported that he had not worked since February 2003; for the 3.5 years before that, he managed his own truck driving company. He reported that before that, he had been unable to find work as a long-haul driver because of the problems with his back. In a June 2010 medical statement, the Veteran's treatment provider stated that he examined the Veteran on a monthly basis. The provider stated that the Veteran suffers from chronic back pain and has great difficulty ambulating more than 50 feet and he cannot stand for any extended period. The provider opined that the Veteran is completely disabled. On August 2011 VA examination, the Veteran reported that he is unable to work because of his increasing pain and disability, particularly his immobility, noting that he is wheelchair bound outside of his house. He reported that he was not currently employed in his usual occupation of electrician, and he had retired due to physical problems (specifically back pain) in 1994. The examiner opined that the Veteran is unable to work due to his cervical and lumbar spine problem which result in decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength of the upper and lower extremities, and pain. On September 2015 VA examination, the Veteran reported that his low back pain was worse with prolonged bending or standing, and he had difficulty getting off a truck due to back pain. He reported that when he was in the National Guard, he worked with the state of North Carolina as a truck driver. He reported he next worked in maintenance at a cotton mill for 6 months, and in maintenance at a shirt factory for 2 years, after which he went to school and became a maintenance foreman. He reported working for Campbell's soup for 12 years until 1993/94, and that he was unemployed for about 2 years after that. He reported that he then obtained a commercial driver's license and worked as a truck driver in 1997, after which he started and ran his own trucking company from 1998 to 2003. The examiner opined that the Veteran's back condition impacts on his ability to work due to decreased mobility and interference with lifting, carrying, and bending. On May 2016 private vocational assessment, the reviewing evaluator opined that the Veteran's chronic back pain results in his being physically limited in his ability to sit, stand, or walk for even short periods of time; he must use assisted devices for all ambulation; he is incapable of performing all daily activities of living independently; and he is dependent on opioid medications for pain control. The evaluator noted that the Veteran has an associate degree in industrial electrical maintenance and maintenance management, and his past work history includes industrial maintenance electrician, industrial maintenance management, welding, and truck driving. The evaluator opined that these occupations are all medium in physical demand and skilled in nature, and although they provide skills that transfer to alternative occupations, those occupations are also physically demanding; the evaluator opined that none of the skills developed in these occupations directly transfers to sedentary alternative employment. The evaluator opined that the Veteran's back disability alone would preclude any gainful occupation. In the August 2019 remand, the Board noted that the examiners' and clinicians' opinions of record that the Veteran's service-connected disability impacts his ability to perform occupational tasks, when considered alongside the SSA award of disability benefits, satisfy the 38 C.F.R. § 4.16(b) criteria for submission of a claim to the Director of the Compensation and Pension Service for extraschedular consideration. An August 2020 AOJ memorandum to the Director of Compensation and Pension Service recommended that entitlement to a TDIU rating on an extraschedular basis be denied because no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical, and there is no plausible evidence that the regular schedular criteria are inadequate to evaluate the Veteran's service-connected disability, and no evidence that an extraschedular grant of TDIU is warranted. In an October 2020 advisory opinion, the Director of Compensation and Pension Service noted that the Veteran last worked in February 2003. It was noted that SSA disability benefits were granted since then due to [both] lumbar disc disease and non-service-connected cervical disc disease and degenerative joint disease of both knees. The Director opined that the VA examinations of record denote the description of a mild to moderate spine disability that has no significant impact on sedentary employment. The Director noted that the Veteran has a service-connected condition which could have functional impact and impair prolonged activities. The Director further noted that the American workplace has had a dramatic shift in the labor force over the last several decades; Americans generally have less strenuous jobs compared to those of years ago, and the decline is due in part to the increasing reliance on computers, Internet, and e-mail. The Director opined that there are many jobs in the workplace that require only light activity and, in addition, technological advances (such as communication devices and adaptive equipment) have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available. The Director opined that there is no evidence of inability to perform sedentary employment due to service-connected conditions. The Director opined based on the evidence of record that there is no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. The Executive Director of Compensation Service indicated that the overall evidence fails to support that the Veteran's service-connected disability prevents employment, and found that entitlement to extraschedular TDIU benefits is not established. In the Board's assessment, the descriptions in VA records illustrate that the Veteran has not been precluded from gainful employment due to physical incapacity. No VA examiner has opined that his service-connected disability alone [emphasis added] results in such functional impairment that he is prevented from substantially gainful employment. The Board has considered the outpatient records and opinion statements generated by the Veteran's treating providers in reaching its decision that evidence of service-connected symptoms showing the Veteran has remained employable (despite his service connected disability) throughout outweighs the evidence showing he is/has been unemployable. The totality of the evidence, including the descriptions of the Veteran's functional capabilities in the VA records, outweighs the evidence that tends to show that he is unemployable due to functional loss from service-connected disability. The Board's conclusion does not suggest that his service-connected disability would not present difficulty in obtaining and maintaining substantially gainful employment. Indeed, his symptoms are not negligible but consequential; they would restrict him to certain types of employment (those that would not require significant or prolonged walking, lifting, or physical activity). Further, his limited transferable skills would be factors in the types of available jobs he could perform (however, his 4 years of college education suggests substantial potential for work that is not strenuous and can be done primarily seated, with accommodations, including from home). The Board is persuaded that considering the functional loss from his service-connected physical disability symptoms alone, he is not shown to (by virtue of service-connected disability alone) to have been/be incapable of participating in gainful employment in various occupations that can be maintained/remain feasible despite the limitations due to the service-connected back disability (e.g., sedentary work such as clerical duties, telephone sales, data entry, and other such occupations that can be performed seated or including limited standing/walking). The record notes the reference to opiate medication (and its suggested alleged impact on the Veteran's employability. The evidence in the record does not show that the opiate medication reported has been prescribed for the service-connected back disability. Accordingly, it is the Board's judgment that the preponderance of the evidence is against the claim for an extraschedular TDIU rating, and that the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.