Citation Nr: 21067882 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-36 438 DATE: November 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from following or maintaining substantial employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to March 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 Department of Veterans Affairs (VA) regional office (RO) rating decision. This case was previously before the Board in March 2019. In that decision, the Board denied entitlement to TDIU on a schedular basis and remanded entitlement to TDIU on an extraschedular basis to the Director of VA Compensation Service. In December 2020, the Director denied compensation on an extraschedular basis. The claim now returns to the Board. TDIU 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 totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability 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 is service connected for right and left lower extremity radiculopathy evaluated as 20 percent disabling, degenerative disc disease evaluated as 20 percent disabling, and a residual back scar rated as noncompensable. The Veteran's service-connected disabilities combine to a total of 50 percent. Thus, the Veteran does not meet the schedular criteria for a TDIU. While the Veteran does not meet the schedular criteria for a TDIU, 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 totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The March 2019 Board remand did refer the TDIU claim for extraschedular consideration. In December 2020, the Director of Compensation Service evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b). The Director concluded that the Veteran was not found to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Board reviews the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and makes an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, regardless of the Director's decision, the question remaining before the Board is whether the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. Importantly, the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA fully must consider "the effect of combinations of disability" under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). As explained in its previous decisions, the Veteran's service-connected disabilities include degenerative disc disease, bilateral lower extremity radiculopathy, and a back scar. The Veteran's combined rating is 50 percent. Therefore, the Veteran's service-connected disabilities do not meet the criteria for the assignment of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The question before the Board, therefore, is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16(b). For the reasons discussed below, the Board finds that throughout the relevant appeal period, the evidence does not indicate that a TDIU on an extraschedular basis is warranted. In a May 2012 lay statement, the Veteran stated that he is unable to maintain employment due to his "ongoing need for medical attention." December 2012 VA treatment records indicate that while the Veteran is currently unemployed, he is pursuing a bachelor's degree. June 2008 Social Security Administration records show that while the Veteran is "physically limited due to chronic pain," and that it is "unlikely he can function in a work setting," the primary rationale was because of the Veteran's psychiatric symptoms. Demonstratively, the examiner reasoned that the Veteran was "likely to get into physical conflicts with potential to harm others" due to his psychiatric symptomatology. The Board notes that the Veteran is not service connected for any psychiatric disability. As listed on the May 2014 and January 2015 TDIU applications, the Veteran suggested that his back disability, psychiatric disability, and right knee injury impact his ability to work. The last time he worked was in April 2011 as a laborer; while specific dates were not included, the Veteran also listed work experience as a cook at McDonalds and Ruby Tuesday's. These applications also showed that the Veteran had training as a wire systems operator, obtained an associate's degree in accounting in November 1996, and was seeking a bachelor's degree in May 2015. At an April 2015 VA examination, the examiner stated that the Veteran's back disability impacted his ability to work as he "can't sit upright for long periods of time . . . Unable to do deep or repeated bending, prolonged standing, prolonged walking, heavy lifting, pushing/pulling, or climbing." At a November 2017 VA examination for his peripheral nerves, the Veteran described that he had constant back pain with tingling and numbness down his legs and that this pain is worse when sitting for more that 20 to 30 minutes. He additionally stated that he is unable to stand at the sink to wash the dishes. After examination, this examiner opined that the Veteran's bilateral lower extremity radiculopathy did not impact his ability to work. At a November 2017 VA examination for his back disability, the Veteran explained that during a flare-up, his legs become weak and is unable to move. After physical examination, the examiner opined that the Veteran's back disability impacted his ability to work in that he would miss approximately 1 to 2 weeks of work in a year as he is unable to "bend down and lift things because standing back up is very painful and leads to tingling in the legs. He cannot push or pull things because of the back pain. He will twist and put side pressure on the spine that will cause back pain. Sitting for 30 minutes increases back pain. Driving is difficult over about 20 minutes. Getting in and out of his car is painful and can twist the back." A June 2018 psychiatry note shows that the Veteran is working in a warehouse position but is "unable to physically do it." It also shows that the Veteran cares for his fiancé at home so he "can't do 9-5 job." A January 2019 VA treatment note recommends that the Veteran avoid prolonged sitting; a May 2017 VA treatment note indicates that the Veteran reported that his back becomes painful after about 20 minutes of sitting. At a March 2020 VA scar examination, the examiner opined that his back scar does not impact his ability to work. A March 2020 VA back examiner opined, similar to the above VA examiners, that the Veteran has difficulty standing, sitting, and walking for prolonged periods of time, as well as repetitive bending, lifting, and twisting. An August 2020 VA back and peripheral nerves examiner estimated that the Veteran would miss 1 work week in the last 12 months due to these disabilities. She similarly stated that the Veteran has difficulty sitting, standing, climbing stairs, lifting, pushing, and must lie down until his back pain subsides. First, the Board finds that the Veteran is unable to physically perform manual labor. The Board highlights the June 2018 note, indicating that he is "unable to physically" perform the manual job duties at the warehouse, as well as the numerous VA examinations which detail his physical limitations. As such, the Board concludes that he is unable to work in a physically demanding position. Accordingly, the next question becomes whether the Veteran is able to work in a sedentary position. In Withers v. Wilkie, 30 Vet. App. 139, 148 (2018), the Court held that if the Board bases its denial of TDIU in part on the conclusion that a Veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular Veteran's work history, education, and training. The Board notes that since "sedentary" is defined as "requiring or marked by much sitting (a sedentary desk job)", it interprets this definition to mean that the Veteran could work in a job where he primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). Here, considering solely the Veteran's service-connected disabilities, job training, and education, the Board finds that the Veteran is capable of working in a sedentary position. The record shows that the Veteran had obtained an associate's degree in accounting in November 1996, was seeking a bachelor's degree in May 2015, and has experience in sedentary work. The record also shows that while the Veteran's back becomes painful upon prolonged sitting, it does not, by itself, prevent sedentary employment. Demonstratively, the Board notes the November 2017 VA examiner's estimation that the Veteran would only lose, at most, 2 weeks of work in a year due to his service-connected disabilities. This medical estimation supports a conclusion that he is not completely precluded from working in a sedentary position. Furthermore, there is other evidence in the claims file which suggests that the Veteran is unable to work because of non-service-related reasons. For example, June 2008 Social Security records show that while the Veteran is "physically limited due to chronic pain," it is "unlikely he can function in a work setting" primarily because he is "likely to get into physical conflicts with potential to harm others," due to his psychiatric disability. Additionally, as listed on the May 2014 and January 2015 TDIU applications, the Veteran suggested that his back disability, in combination with his psychiatric disability and right knee injury, impacts his ability to work. The Veteran is service-connected for neither a psychiatric disability nor a right knee disability. Lastly, the Board notes the June 2018 psychiatry note which states that the Veteran "can't do a 9-5 job" specifically because he cares for his fiancé at home. Simply put, because these items are not related to service, they cannot be weighed in favor of the claim. Based on the above, the preponderance of the evidence is against a finding of unemployability based solely on the Veteran's service-connected disabilities. The medical evidence suggests that the Veteran's service-connected disabilities impact his ability to work; however, there is no indication that the Veteran would be unable to secure or follow a substantially gainful occupation. There is no reasonable doubt to be resolved and the appeal is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.