Citation Nr: 21067503 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-50 385A DATE: November 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active duty from June 1979 to June 1982 and from November 1983 to November 1986. 2. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1131, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Veteran had additional issues on appeal. However, he has opted all other issues into the Appeals Modernization Act (AMA) system, withdrawing them from the Legacy system and leaving solely the issue of entitlement to a TDIU for adjudication. The statement of the case (SOC) sent to the Veteran and his representative in March 2017 was returned undeliverable. It was remailed in October 2017 and thus the Form 9 substantive appeal submitted later that month is timely. Turning to the relevant laws and regulations, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). 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 (1993). Turning to the evidence, the Veteran is service connected for adjustment disorder at 70 percent from October 25, 2018, residuals of a lumbar spine laminectomy with intervertebral disc syndrome (IVDS) at 40 percent from September 4, 2012, left leg radiculopathy at 10 percent from June 4, 2014, and both right ear hearing loss and residual scar of the lumbar spine at noncompensable levels for the duration of the appeal period. He thus has a total combined 50 percent rating from June 4, 2014, and 80 percent since October 25, 2018. As he has both a single disability with a rating of 60 percent and a total combined rating in excess of 70 percent with at least one disability with a 40 percent rating, he meets the criteria of 38 C.F.R. § 4.16(a) since October 25, 2018, but not before. As for the period prior to October 25, 2018, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board lacks the power to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Turning then to the period prior to October 25, 2018, the evidence does not reveal a disability picture that was so exception that the case supports referral to the Director for extraschedular consideration. A review of the medical records failed to show recurrent hospitalization on account of a service-connected back, radiculopathy, hearing loss, or scar. Additionally, the record also shows that the Veteran was either pursuing a master's degree or working during this portion of the appeal period. June 2016 vocational rehabilitation records show that he was employed full-time following graduation with a master's degree. A June 2018 correspondence regarding a separate appeal showed that he was trying to reschedule a hearing due to employment obligations. As for the service-connected disabilities, the Veteran told a March 2015 VA examiner that back pain made every activity difficult and that he was pursuing a master's degree. No radiculopathy was noted, and the examiner determined that the spine disability did not impact the Veteran's ability to work. VA medical records during this period similarly show continued treatment for low back pain tolerable with medication, and hearing loss. A May 2017 VA examiner found that the lumbar spine disability and left lower extremity radiculopathy caused pain with repeated bending, lifting, or prolonged standing or sitting. Therefore, any job that required the same movements would also cause pain. The Veteran was hospitalized for back surgery but prior to the appeal period. VA treatment records show treatment for hearing loss, but not exceptional functional impairment. May 2015 VA medical records show treatment in which he complained that his left ear hearing aid needed to be turned up as it was not loud enough; however, he is only service connected for hearing loss in the right ear. The VA medical records and the May 2017 VA examiner found no functional loss associated with the lumbar spine surgical scar. Given the Veteran was able to complete a higher-level degree program and obtain and maintain substantially gainful employment during this period, his service-connected disabilities do not rise to the level of functional impairment such that referral to the Director for extraschedular consideration prior to October 25, 2018. Turning next to the period starting October 25, 2018, the evidence still showed that the Veteran was gainfully employed during this period. There is no indication that the full-time employment he began in June 2016 had ended or that he was unable to work due to his service-connected disabilities. As for the medical evidence, a November 2018 VA examiner found that adjustment disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation due to symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work like setting; and neglect of personal appearance or hygiene. The Veteran also gave the examiner a letter from his spouse detailing his pain and its impact on his mood. The letter stated he had intense pain where he could barely function and had to stay in bed for days at a time. A review of his medical records reveals that other than back pain, he had complaints of other joint pains for which he is not service connected. Finally, he informed the examiner that had been working four days per week for the last two years. Next, a January 2020 VA examiner noted that the Veteran's low back and lower left extremity radicular disability caused disturbances of locomotion and interference with sitting and standing, with daily pain when walking, bending, lifting, prolonged sitting or standing, as well as pain down both legs with periodic numbness. He stated that he occasionally used a cane for his back. The lumbar spine scar was not symptomatic. VA medical records do not show extensive treatment or hospitalization. November 2018 VA medical records show chronic back and foot pain as an issue and included a referral to replace a nerve stimulator. The VA medical record also list hearing loss as an issue, but do not reveal significant functional impairment during the appeal period. Collectively, the Veteran's service-connected disabilities, specifically the spine and radicular symptoms, would make any form of employment requiring significant physical labor unreasonable to maintain. Additionally, his psychiatric symptoms may cause difficulties in any work environment which would include interaction with customers, clients, or other employees, but given that the Veteran has obtained and maintained substantially gainful employment during the appeal period, it may not be said to preclude employment in such fields. Further, there is no indication that the Veteran's employment is either marginal, or below the poverty line. As such, given that he is gainfully employed throughout the duration of the appeal period in which he qualifies for a schedular TDIU, his disabilities cause functional impairment, as represented by their assigned ratings, but do not rise to the level of precluding him from securing and maintaining substantially gainful employment. Therefore, the evidence does not support the claim for a TDIU. The Board has considered the lay statements and testimony of the Veteran regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, Brendan 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.