Citation Nr: 21066475
Decision Date: 11/01/21	Archive Date: 11/01/21

DOCKET NO. 12-34 263
DATE: November 1, 2021

ORDER

1. Entitlement to an initial rating in excess of 20 percent for left shoulder degenerative joint disease (left shoulder disability) is denied.

2. Entitlement to an initial rating in excess of 20 percent for lumbar degenerative disc disease (lumbar spine disability) is denied.

3. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) prior to November 10, 2015, is denied.

FINDINGS OF FACT

1. The Veteran's left shoulder disability has not been manifested by limitation of motion of the arm with flexion and/or abduction limited to 25 degrees or less from the side involving the minor extremity.

2. The Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

3. The preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities prior to November 10, 2015.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003-5201.

2. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5237.

3. The criteria for entitlement to a TDIU rating were not met prior to November 10, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from March 1989 to November 2010.

These matters are before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in February 2020 in order to obtain updated VA examinations relating to the increased rating claims herein.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The Veteran's service-connected left shoulder disability is currently rated as 20 percent disabling under DC 5003-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen.

The Board notes that the Veteran is right-handed. Thus, the relevant criteria pertaining to the left shoulder disability shall be in reference to the minor extremity.

Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under Diagnostic Code 5201, limitation of motion of the minor extremity at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) also warrants a 20 percent rating for the minor extremity. Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201.

The normal ranges of motion of the shoulder are 180 degrees of forward elevation (flexion) and abduction (90 degrees is shoulder level), and 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I.

The Veteran's service-connected lumbar spine disability is currently rated as 20 percent disabling under DC 5237 of the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a.

The General Rating Formula provides the following, in pertinent part: a 20 percent disability rating is warranted for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a maximum schedular 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

Following a review of the evidence of record, including as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to increased disability ratings.

1. Left shoulder disability

The Veteran tore his rotator cuff in service between 2003 and 2004. He underwent physical therapy thereafter, but has not required physical therapy or surgery during the relevant period. He has reported chronic pain symptoms and difficulty reaching above his head. Since his discharge from active duty, the record shows that the Veteran has received steroid injections for his chronic pain every six to eight months. In 2011, the Veteran reported that his combined disabilities did not impact his ability to manage his personal care. 

The Veteran underwent a VA examination for assessment of his shoulder disability in February 2012. The Veteran exhibited left shoulder flexion to 110 degrees, with pain beginning at 60 degrees. He described left shoulder flare-ups during which he was prevented from lifting his arm above horizontal. As to functional impact, it was noted that the Veteran's shoulder condition caused decreased ability to lift, carry and perform overhead motions, and would preclude moderate to markedly physically demanding employment. However, the examiner did not describe the frequency or duration of the Veteran's reported flare-ups nor did he estimate the loss of motion during flare-ups in terms of degrees. Because of this and the Veteran's report of worsening condition, the Board remanded the matter in February 2020 for an adequate VA examination to assess the current status of the Veteran's disability.

The Veteran underwent another VA examination in October 2020. The Veteran reported ongoing pain in the left shoulder and stated that he cannot really lift it overhead. The Veteran was assessed with degenerative arthritis of the left shoulder along with his history of rotator cuff tear. The Veteran denied flare-ups impacting the function of his shoulder. Range of motion in the Veteran's left shoulder was recorded at 90 degrees for flexion, abduction, external rotation, and internal rotation. The Veteran did exhibit pain with flexion and abduction, but there was no additional loss of function in range of motion with three repetitions, or with repeated use over time. The Veteran recorded full strength with no ankylosis. Impingement and empty can tests were positive on the left side, but there was no shoulder instability, dislocation, or labral pathology suspected. As to the functional impact of the Veteran's left shoulder disability, the examiner noted that the Veteran should refrain from heavy lifting and overhead lifting with the left shoulder. 

The objective findings of record do not support the award of an increased disability rating under DCs 5003-5201. Notably, the Veteran's range of motion is not limited to 25 degrees on flexion and/or abduction from the side, as required under DC 5201 for a rating in excess of 20 percent. While the Veteran recorded 4/5 strength in the left shoulder on VA examination in 2012, this was improved to 5/5 on the most recent examination. In both cases, the Veteran was found not to have muscle atrophy, and the Veteran has remained independent in activities of daily living. The Board interprets these findings are evidence against severe weakness. In other words, the 4/5 and 5/5 muscle strength is contemplated by the Veteran's existing 20 percent rating. The Board finds that the 20 percent rating already assigned contemplates the Veteran's symptoms of pain. 

The Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have not exceeded the 20 percent level for his left shoulder disability throughout the appeal eriod, staged ratings are not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). For example, as documented in VA examination reports, the Veteran's shoulder has not experienced any dislocation to warrant consideration of Diagnostic Code 5202.

Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the preponderance of the evidence is against a finding that the Veteran's pain and functional limitations resulted in functional limitation of the motion of the left arm to 25 degrees or less from the side, which would be required for a finding that the Veteran was entitled to a 30 percent disability rating. The 20 percent rating contemplates, at a minimum, moderate functional impairment. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45 is not approximated in the Veteran's disability picture throughout the appeal period.

In sum, the preponderance of the evidence is against an initial rating in excess of 20 percent for the Veteran's left shoulder disability. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased initial rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

2. Lumbar spine disability

The Veteran has reported chronic pain in his back and treatment records reflect that the Veteran uses a cane for ambulation. The Veteran has not required surgery but has reported a history of some physical therapy and epidural steroid injections for pain management, along with medication. In 2011, the Veteran reported that his combined disabilities did not impact his ability to manage his personal care.

The Veteran underwent a VA spine examination in February 2012. The examiner indicated that the Veteran's lumbar spine disability severely impairs the Veteran's mobility, prolonged positions, lifting, bending, carrying, and stamina, but that the Veteran could potentially perform sedentary employment that allowed rest breaks to stand and stretch, and provided access other than stairs. Although the Veteran endorsed flare-ups, the examiner did not describe the severity, frequency or duration of the Veteran's reported flare-ups nor did he estimate the loss of motion during flare-ups in terms of degrees. Therefore, in February 2020, the Board remanded the matter for an updated and adequate VA examination, which took place in October 2020.

At the examination, the Veteran reported pain with bending, limiting his mobility. On range of motion testing, the Veteran exhibited forward flexion to 50 degrees; extension to 10 degrees; lateral flexion to 20 degrees bilaterally; and lateral rotation to 20 degrees bilaterally. These findings did not change with repetitive use testing. The Veteran denied flare-ups. He exhibited no guarding or spasm, full strength, no atrophy, normal reflexes and sensation, and no IVDS. The Veteran was not found to have ankylosis. Regarding the functional impact of the Veteran's disability, the examiner stated that the Veteran should refrain from heavy lifting and frequent bending, stooping and climbing. 

The preponderance of evidence of record is against the award of a disability in excess of 20 percent. Specifically, the Veteran does not have forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine to warrant an increased rating. The Veteran's flexion in 2012 was to 45 degrees and in 2020 was to 50 degrees. The Veteran had muscle spasms at the time of the February 2012 VA examination, which the examiner documented caused an abnormal gait, but no muscle spasms were found at the time of the October 2020 VA examination. In February 2012, the Veteran had full muscle strength with bilateral hip flexion, bilateral ankle plantar flexion, bilateral ankle plantar dorsiflexion, and bilateral great toe extension. He had 4/5 muscle strength with bilateral knee extension. At the time of the October 2020 VA examination, he had 5/5 muscle strength for all testing. Both of these findings from the February 2012 and October 2020 VA examinations is evidence against severe functional impairment. The Veteran's pain symptoms are contemplated by the Veteran's existing 20 percent disability rating, as the rating criteria specifically contemplate pain. The 20 percent rating contemplates moderate functional impairment and contemplates the muscle spasms documented within the February 2012 VA examination report. Thus, a rating in excess of 20 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45 is not approximated in the Veteran's disability picture for the period on appeal

For the reasons stated above, the preponderance of the evidence is against the claim for a higher rating for the Veteran's lumbar spine disability. Therefore, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

TDIU

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).

Since November 10, 2015, the Veteran has been in receipt of a 100 percent schedular rating. A grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU rating moot, as a TDIU rating could, in certain circumstances, render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that a TDIU rating is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the Board notes that the Veteran was only rated at 100 percent for a single disability temporarily relating to recovery from a total left knee replacement in November 2015. Otherwise, the Veteran's disabilities are rated no higher than 50 percent on an individual basis, and the record does not support that the Veteran's other disabilities alone would support an award of TDIU. Hence, the Board finds as fact that entitlement to a TDIU rating is moot for the period beginning on November 10, 2015.  

Prior to November 10, 2015, the Veteran was service-connected for obstructive sleep apnea with a 50 percent disability rating from December 1, 2010; migraine headaches with a 30 percent disability rating from September 28, 2011, and a noncompensable rating from December 1, 2010; left shoulder degenerative joint disease with a 20 percent disability rating from December 1, 2010; lumbar degenerative disc disease with a 20 percent disability rating from December 1, 2010; left knee instability associated with left knee degenerative joint disease with a 10 percent disability rating from December 1, 2010; left elbow spurs with a 10 percent disability rating from December 1, 2010; right elbow spurs with a 10 percent disability rating from December 1, 2010; right wrist fibro cartilage tear with a 10 percent disability rating from December 1, 2010; bilateral knee degenerative joint disease with a 10 percent disability rating on each side; left wrist fibro cartilage tear and strain with a 10 percent disability rating from September 28, 2011, and a noncompensable rating from December 1, 2010; allergic rhinitis with a 10 percent disability rating from September 28, 2010, and a noncompensable disability rating from December 1, 2010; GERD with a 10 percent disability rating from September 28, 2010, and a noncompensable disability rating from December 1, 2010; hypertension with a noncompensable disability rating from December 1, 2010; a head scar with a noncompensable disability rating from December 1, 2010; and pseudofolliculitis barbae with a noncompensable disability rating from December 1, 2010. Accordingly, the Veteran has had a combined total disability rating of 90 percent from December 1, 2010, which qualifies for schedular TDIU consideration.  

"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 United States Court of Appeals for Veterans Claims (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 his 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 he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Veteran received a Social Security Administration (SSA) disability determination dated in March 2012, which found that he is disabled and unable to sustain fulltime employment effective in December 2010. It is noted that such a finding is not binding on any determinations made by the VA. VA and SSA use different definitions and standards for determining disability and SSA also considers limitations from all disabilities, versus considering disabilities that are related to service or a service-connected disability. It is noted that the Veteran was found disabled by SSA for meeting specific listing criteria under SSA regulations which are not applicable to VA. While records submitted by SSA have been considered along with the totality of the evidence, the SSA determination is not instructive of any findings made by VA. 

The above discussion of the Veteran's increased rating claims are incorporated herein, to the extent relevant. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing and following substantially gainful employment during the period on appeal. The reasons follow.

3. TDIU prior to November 10, 2015

The Veteran has reported that his combined impairments cause chronic pain and reduced mobility. He has also reported symptoms of fatigue and reduced concentration. He has alleged that his service-connected disabilities have precluded him from substantially gainful employment. 

The record shows the Veteran's primary vocational limitations to be caused by his multiple musculoskeletal disabilities. As to the Veteran's service-connected hypertension, allergic rhinitis, esophageal condition, scars, and skin diseases, the Veteran has received only sporadic and conservative treatment, and has generally not alleged that these conditions prevent him from working. See September 2011 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability (listing sleep apnea, left knee, and lumbar spine disabilities as preventing substantially gainful employment). VA examinations for each of these conditions in February 2012 all stated that these disabilities caused no functional impact on the Veteran's ability to work. 

The Veteran is noted to have a remote history of left knee arthroscopic surgery in 1987 and 2007. The Veteran underwent a VA examination of his knees in February 2012. With respect to functional impact, it was noted that the Veteran would be limited to sedentary work and would require access other than stairs with rest breaks to stand, stretch, and prevent stiffness. The Veteran received steroid injections to his knees and used a brace, as well as a cane. Treatment records from 2015 indicate that the Veteran remained neurologically intact, but treatment methods were becoming less effective and he would require a total left knee replacement in November 2015.

The Veteran underwent VA examinations for assessment of his bilateral wrist and elbow in February 2012. The examiner stated that the Veteran's wrist conditions impair strength, fine motor abilities, lifting, carrying, and range of motion, and precludes moderate to markedly strenuous employment. The examiner stated that the Veteran's bilateral elbow spurs cause mild impairment with lifting and carrying. The longitudinal record does not show intrusive or recurrent treatment relating to the Veteran's wrists or elbows during the relevant period.

The Veteran reported fluctuating migraine symptoms during the relevant period with periodic prostrating attacks. However, treatment was relatively conservative with the use of medication, which the Veteran reported to work well for acute headaches on VA examination in February 2012. The record does not show that the Veteran has required emergency or inpatient care relating to this disability and he remained independent in his activities of daily living. The Veteran's VA examiner in February 2012 stated that the Veteran was "unemployed due to headaches, knees, back." However, this appears to reflect the Veteran's reporting and no specific functional limitations were discussed. 

The Veteran was afforded a VA examination for obstructive sleep apnea in July 2010. The Veteran was using a CPAP machine, which was effective in making him rest better. The Veteran felt better during the day and had no complaints. On a separate VA examination in February 2012, it was noted that continuous medication was not required for control, but the Veteran reported experiencing persistent daytime hypersomnolence. With respect to functional impact, the Veteran reported that he was sleepy all the time and his concentration was affected. The Veteran reported that he had fallen asleep at the wheel and stated that his wife and niece now drive him places and that he rarely goes anywhere.

However, the Board notes that the Veteran's reports relating to the functional impact of his sleep apnea is not consistent with his abilities demonstrated during the relevant period, which does not show significant limitations relating to the Veteran's ability to concentrate or drive. For example, the Veteran earned multiple college degrees through VA's vocational rehabilitation program during the relevant period. Transcripts show that the Veteran received excellent grades and he was enrolled in a master's degree program in 2015. Vocational rehabilitation records from 2013 show that the Veteran reported that he had a car that he would be able to use to commute to a job and that he would be willing to commute up to one hour or 50 miles each way. The Veteran's treatment records have generally described the Veteran as awake, alert, and oriented. These findings show that, despite reported daytime hypersomnolence, the Veteran's sleep apnea, as well as his migraine symptoms, have not resulted in significant functional limitations, including to the Veteran's concentration or ability to drive that would preclude the Veteran's ability to work.

Additionally, the Veteran's pursuits in vocational rehabilitation and education indicate the Veteran's believed he was capable of employment and was actively taking measures to find work and improve his employment prospects. Vocational rehabilitation records received in 2014 show that the Veteran was working toward a degree in Business Management from Southern University and that he had multiple job offers pending upon completing of his degree in June 2014. It was noted that this field would be compatible with the Veteran's disabilities and that the Veteran "has concluded that the job will not significantly aggravate his disabilities." In early 2015, the Veteran was enrolled in a master's degree program for Business Administration at Southern University, continuing to demonstrate his functional abilities and improving his vocational prospects. The Veteran was able to work towards three, separate college degrees, including a master's degree, during the relevant period. He had multiple pending job offers in a field of work, which the Veteran stated that he was capable of performing despite his service-connected disabilities. This is highly probative evidence against a finding that the Veteran was unable to secure or follow substantially gainful employment prior to November 10, 2015. 

Furthermore, in a separate vocational self-assessment from October 2013, the Veteran reported that he would have difficulty with many aspects of physically demanding work but stated that he was limited to light work only when given the option of saying that he was capable of sedentary, light, medium, heavy, or very heavy work. The Veteran reported no cognitive problems, including no problems with attention, concentration, or memory. The longitudinal record reveals relatively conservative treatment during the relevant period without the need for inpatient care relating to his service-connected disabilities. For the reasons stated above, the weight of the evidence shows that the Veteran was not precluded from employment due to service-connected disabilities prior to November 10, 2015.

Regarding the Veteran's education, training, skill, and work history, the Veteran reported that he worked as a Communications Supervisor during active duty. He reported that he primarily performed this job while seated, approximately seven hours in an eight-hour day. Following service, the record indicates that the Veteran earned associate's and bachelor's degrees in business, and he was enrolled in a master's business program at Southern University in 2015. Even without consideration of the Veteran's education, the Veteran has supervisory/managerial skills and experience relating to his occupation in the Army. The Veteran's work and education history demonstrate a capacity for learning, training, and adaptation that are not hindered by his service-connected disabilities. These attributes would facilitate the Veteran's ability to find work within the restrictions of his service-connected disabilities.

As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences chronic pain in his extremities and back with reduced range of motion and mobility, and difficulty with prolonged sitting, standing, and walking, as well as difficulty performing postural maneuvers, such as bending, kneeling or squatting. However, by the Veteran's own admission, his service-connected disabilities did not prevent him from work during the relevant period, as evidenced by his educational and vocational pursuits, including job offers and statements regarding his ability to perform light work. The totality of the evidence shows that the Veteran is able perform work at the sedentary exertional level with the ability to switch positions between sitting and standing at will, and with the use of a cane for 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 the 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 Veteran's ability to earn multiple college degrees and his representations that he is capable of employment with multiple pending job offers shows that the Veteran was capable of sedentary employment during the relevant period. 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's service-connected disabilities have not been shown to cause the Veteran communication deficits. While the Veteran has reported daytime sleepiness and concentration and/or cognitive deficits relating to sleep apnea and headaches, the record does not indicate these symptoms to cause the Veteran significant functional deficits. Treatment records describe the Veteran as awake, alert, and oriented. The Veteran earned multiple college degrees with exemplary grades after his discharge from service. Additionally, the Veteran did not report any cognitive deficits on a vocational self-assessment in 2013 and represented that he is suited to work in roles with supervisory/managerial duties. As the Veteran's service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence shows that the Veteran was 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 Veteran could perform jobs involving data entry. With data entry, the Veteran would be primarily responsible for entering data into a system. These jobs can be done primarily while seated and would not require significant physical exertion and would allow the Veteran to position himself for comfort. The Veteran's work and educational history demonstrates the rudimentary computer skills necessary for such work and significant additional training would not be required. Alternatively, there are jobs, such as a telemarketer, where the employee makes calls and reads a script. Similarly, a customer service agent interacts with customers to handle complaints, process orders, and answer questions. These jobs do not require extensive training or experience, require minimal exertional activity and would allow the Veteran to switch positions as needed. All of the above positions would allow for the use of a cane for periods of ambulation and can oftentimes be performed from home. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to his service-connected disabilities.

For all these reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. As the evidence of record weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and a TDIU rating prior to November 10, 2015 is not warranted, and the claim of entitlement to a TDIU rating is 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.