Citation Nr: 21068166 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-49 886 DATE: November 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The service connected disabilities have not rendered the Veteran unemployable. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1965 to October 1982. In February 2020, the Veteran filed a VA form 21-8940, reporting inability to secure or follow substantially gainful employment due to chronic back pain since February 2007. A TDIU may be assigned if 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 disabilities, provided that 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). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). Service connection is in effect for posttraumatic stress disorder (30 percent from January 2009), hypertensive heart disease (30 percent from April 16, 2012), thoracolumbar spine disability, and hypertension (10 percent from January 2, 2009). The Veteran meets the schedular rating effective from April 16, 2012. On the February 2020 VA form 8940, the Veteran reported unemployability due solely to low back pain. He reported that he became too disabled to work in February 2007 and indicated that he worked as a lead electronics technician. A VA form 21-4192 from the Veteran's final employer reports that the Veteran's employment ended due to early retirement; no concessions were reportedly made to the employee by reason of age or disability. The record includes history of taking courses during service relevant to his duties and teaching for three years as an instructor during service. The record includes VA and private examination records and private treatment records. For the sake of brevity, the Board will not cite all relevant evidence, though it notes that most records are summarized in the March 2019 and December 2020 Board decisions. After consideration of the probative evidence, the Board finds that although the service-connected disabilities result in impairment of occupational functioning, the probative evidence does not suggest that the service-connected disabilities have rendered the Veteran unable to obtain or maintain substantially gainful employment. The Board finds the record does not suggest that the Veteran would have been unable to obtain or maintain a position that was associated with limited physical labor with allowance for position changes and that was not significantly public-facing, such as data entry, providing online training courses consistent with his prior occupation, or associated with a call or information center due to service-connected disabilities. This determination is consistent with a September 2020 VA medical opinion that determined the Veteran would be able to perform sedentary work, which the opinion explains is work with "exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull" and that involves sitting most of the time, but may involve walking or standing for brief periods of time. The opinion adds that jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. VA treatment and examination records do not reveal any findings indicative of unemployability due to any single disability and the Board finds the evidence does not suggest unemployability due to the collective impact of the disabilities. Notably, although the record indicates that the service-connected disabilities result in some impairment of mood and memory and social functioning and limited ability to perform physical activities or exertion, the record indicates that the Veteran has the skills and experience to perform positions that do not require significant labor or interaction with people. In making this determination, the Board notes that the Veteran is able to maintain relationships throughout the period of appeal The Board notes that a December 2014 private medical statement reports that the Veteran was receiving treatment for "uncontrolled hypertension" that continued to cause concerns. The record adds that the Veteran reported shortness of breath on exertion with "some dizziness and imbalance" and that the Veteran's functioning fell in the area of a category of 6 METS. The record includes treatment records from the private physician who wrote the medical statement. The treatment records, including those dated in January 2015 and July 2014, report "good control" of blood pressure. The records do reveal a history of dizziness and "some shortness of breath with walking" in October 2011 and dizziness in January 2014. The records also reveal histories of dyspnea on exertion in July 2012 and July 2013, July 2014 and January 2015 and negative history of dyspnea in December 2009, June and October 2011 or July 2013 or major dyspnea in January 2014. A December 2011 treatment record reveals that cardiovascular symptoms did not include dyspnea on exertion but respiratory symptoms included dyspnea and a December 2010 record revealed that cardiovascular symptoms did not include dyspnea on exertion but respiratory symptoms included shortness of breath with exertion. The Board finds the December 2014 medical statement is not probative evidence of unemployability of sedentary employment because the treatment records contradict the notation of uncontrolled hypertension and attribute at least some of the dyspnea to noncardiovascular etiology and because the assigned METS of 6 and evidence of dyspnea on exertion indicate that the cardiovascular disabilities would not be particularly limiting of sedentary employment as defined above. The Board further notes that the record includes a July 2015 private opinion by a chiropractor that reports that "for reasons of military related conditions, chief among them low back pain and unpredictable manifestations of PTSD," the Veteran is "medically deemed to be" "individual unemployable." The chiropractor determined that there was no reasonable expectation of clinical and/or symptomatic improvement and that it was clinically evident that the disabilities do not allow the Veteran to follow any form of gainful employment. The Board finds the chiropractor's opinion is of limited probative value. Notably, the chiropractor does not provide any rationale for the opinion, including an explanation for the determination that the Veteran had "unpredictable" PTSD symptoms, the record does not otherwise indicate his qualification to assess the severity of a psychiatric disability in a medical (and not lay) capacity, and the chiropractor considered nonservice connected disabilities of tinnitus and hearing loss. Regarding the reported psychiatric symptoms, the Board notes that although the record reports "increased" insomnia, anxiety, nightmares, and memory, the record does not state or otherwise suggest that the increase was significant and/or worse than the mild impairment noted on previous VA examinations, and the Board notes that clinical findings were normal in January and September 2016, indicating that any increase was not significant. Furthermore, the record indicates that subsequent clinical examination did reveal improvement in the low back disability, notably improvement of range of flexion from 20 degrees to 50 degrees by July 2018, which means a basis for the low back disability portion of the opinion is of even more limited probative value as of that date. To the extent the chiropractor's findings are probative regarding the functional impact of the low back disability, particularly for the period from July 28, 2015, to July 26, 2018, the Board finds the opinion is outweighed by the evidence against a finding of unemployability. Again, the Board finds the Veteran could obtain and maintain employment with flexibility for position shifts and breaks as needed, such as in a position that allowed working from home on a computer. The Board finds such positions are not precluded by the Veteran's experience and occupation given his prior experience in the technical field and experience as an instructor. Finally, the Board notes the January 2020 private vocational opinion. The Board finds this opinion is of lesser probative value than the evidence that the Veteran could perform sedentary occupation. The opinion reveals the determination that the Veteran's previous position involved "medium work, skilled." The opinion then concludes that the Veteran would be unable to perform even sedentary work by at least February 2007 due to impaired attention and concentration, fatigue, intrusive thoughts and need to be off task for 10 percent of a workday. The opinion adds that the Veteran's back pain would also preclude even sedentary positions because even sedentary jobs require walking and standing. The record indicates that the Veteran's impairment of attention, concentration, intrusive thoughts, and motivation have been characterized as mild, however, and the vocational consultant neither addresses the characterizations of "mild" impairment nor considers positions that offer flexible work hours and work sites and no physical requirement, as seen in many telework data entry positions. The record indicates that the Veteran is able to move independently around and outside his house, which indicates that his movement is not so limited as to preclude any "sedentary" occupation as defined by the vocational consultant. In sum, the Board finds the service connected disabilities would not preclude substantially gainful employment in a position with flexible work hours and work locations, such as a work from home position in data entry or technical training, which the Board finds the Veteran would be able to perform based on his occupational and military background. The Board has considered the doctrine of reasonable doubt in reaching this decision as well but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thus, the claim is denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals 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.