Citation Nr: 21069876 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-12 099 DATE: November 22, 2021 ORDER Entitlement to an effective date prior to July 7, 2017, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT Prior to July 7, 2017, the Veteran's service-connected disabilities (degenerative disc disease and degenerative arthritis of the lumbosacral spine ([rated] 40 percent from April 1, 2011), left lower extremity radiculopathy (10 percent from January 5, 2006), right lower extremity radiculopathy (10 percent from January 31, 2011), tinnitus (10 percent from November 27, 2013), coronary artery disease (10 percent from May 26, 2015), bilateral hearing loss (0 percent from January 1, 1998), hypertension (0 percent from January 1, 1998), and residual back surgery scars (0 percent from February 16, 2011) had a combined rating of (at most) 60 percent; the preponderance of the evidence is against a finding that prior to July 7, 2017, the service-connected disabilities, alone, were of a nature and severity sufficient to result in functional impairment that precluded substantially gainful employment. CONCLUSION OF LAW Before July 7, 2017, the schedular rating requirements for a TDIU rating were not met, and TDIU on an extraschedular basis was not warranted. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 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 January 1969 and from April 1972 to December 1997. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2018 Department of Veterans Affairs (VA) rating decision, which granted a TDIU rating effective March 23, 2018; the Veteran appealed for an earlier effective date. (Notably, the TDIU issue was part and parcel of a claim for a higher rating for a lumbar spine disability, which the Veteran had filed in January 2012.) In September 2019, the Board granted a higher (40 percent) rating for the lumbar spine disability for the entire period on appeal; it also remanded the case to the agency of original jurisdiction (AOJ) for further development of the issue of an earlier effective date for a TDIU. A September 2019 rating decision granted a 40 percent rating for the lumbar spine disability effective April 1, 2011 and granted a TDIU rating effective July 7, 2017. In May 2021, the Board remanded the case to the AOJ for further development of the issue of an effective date prior to July 7, 2017 for a TDIU. Entitlement to an effective date prior to July 7, 2017, for the grant of TDIU The Veteran contends that his service-connected disabilities, mainly his lumbosacral spine disability and associated left and right radiculopathy, prevented him from engaging in substantially gainful employment before July 15, 2014. 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 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). Prior to July 7, 2017, the Veteran's service-connected disabilities consisted of degenerative disc disease and degenerative arthritis of the lumbosacral spine ([rated] 40 percent from April 1, 2011), left lower extremity radiculopathy (10 percent from January 5, 2006), right lower extremity radiculopathy (10 percent from January 31, 2011), tinnitus (10 percent from November 27, 2013), coronary artery disease (10 percent from May 26, 2015), bilateral hearing loss (0 percent from January 1, 1998), hypertension (0 percent from January 1, 1998), and residual back surgery scars (0 percent from February 16, 2011). Under 38 C.F.R. § 4.25, the combined rating was 40 percent from January 31, 2011; 50 percent from April 1, 2011; and 60 percent from November 27, 2013. Such ratings do not meet the threshold minimum schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a); that is, he did not have a single service-connected disability rated 60 percent or more, and the combined schedular rating for service-connected disabilities was not 70 percent or more. Accordingly, prior to July 7, 2017, a schedular TDIU rating was not warranted. Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The matter is referred to the Director, Compensation Service, for extraschedular consideration in the first instance. Id. 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. Here, the Board finds that the preponderance of the evidence is against a finding that for the period on appeal (prior to July 7, 2017), the Veteran was unable to obtain and maintain a substantially gainful occupation due to his service-connected disabilities. In September 2019 and May 2021, the Board remanded the case to the AOJ for referral of the TDIU claim for extraschedular consideration. In July 2021, the AOJ referred the case to the Director, Compensation Service, for extraschedular consideration for the period prior to July 7, 2017, and in an August 2021 advisory opinion, the Executive Director found that the overall evidence failed to support the claim for a TDIU on an extraschedular basis. 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 has not previously made any factual findings as to whether the Veteran was unemployable due to service-connected disability prior to July 7, 2017. (In its September 2021 remand, the Board stated that, given the evidence showing the Veteran's difficulty with prolonged sitting, standing, and walking, there was a "plausible basis for concluding" he was unemployable prior to [the effective date of TDIU at that time of] March 23, 2018.) As such, it is not incumbent upon the Board to "explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage." See Ray v. Wilkie, 31 Vet. App. 58 (2019). Moreover, the Board is not obliged to defer to the findings of the Director (see Wages v. McDonald, 27 Vet. App. 233 (2015)), who in this case determined not to grant an extraschedular TDIU. In any case, the Board has reviewed all the pertinent evidence carefully and finds that the evidence against an award of extraschedular TDIU prior to July 7, 2017 outweighs the evidence supporting it. In a May 2018 TDIU application, the Veteran alleged that the service-connected disabilities resulting in unemployability were his lumbosacral spine degenerative disc disease, bilateral lower extremity radiculopathy, coronary artery disease, and hypertension; however, the first two disabilities appeared to cause most if not all of his occupational functional impairment. On his application, he described his job requirements of continuous walking, standing, and bending, which exacerbated his low back and lower extremity pain. He asserted that his pain compelled him to frequently pause work conducting inspections until the pain subsided. He has not clearly indicated how his coronary artery disease (rated 10 percent disabling from May 2015) or his other remaining disabilities (each except for tinnitus at 10 percent rated 0 percent) contributed individually or in concert to prevent him from substantially gainful employment. Medical examination reports do not support such a claim. For example, on an April 2017 VA heart examination report, the examiner concluded that the Veteran's heart condition did not impact his ability to work. As such, the employability inquiry will necessarily focus on his low back and lower extremity neurological disabilities. On his TDIU application, the Veteran reported that he last worked full time on January 31, 2012, before resigning his job as a manager, specifically the Regional Vice President of Operations for a company providing groundskeeping, facility maintenance, and housekeeping services for colleges and universities. He also stated that he returned to this position as a "temporary manager" in 2013 (indicating he "applied" for the job in May 2013) before he again resigned due to constant back pain. Information from his former employer, dated in August 2018, indicates that he last worked for the company on November 30, 2013, and that he "[r]etired for health reasons." The gross amount of income he earned during the 12 months preceding the last date of employment was approximately $25,094 [which was not below the poverty threshold for that year for him and his wife, according to the Census Bureau]. In a January 2020 letter to the Veteran, the VA requested a more detailed work history for 2012 and 2013, including the number of hours worked per week, the exact dates of his employment, time lost from illness, etc., but he never responded. Therefore, from what can be confirmed from the record, he was gainfully employed until December 1, 2013. Thus, the focus of this appeal is on the period from December 1, 2013 to July 7, 2017. The Veteran reported on his TDIU application that his education consisted of completing two years of college, with no other education or training before or since he became too disabled to work. Until he retired at the end of November 2013, he was employed in managerial positions (most recently a regional operations vice president) for his company since 2003. Prior to that, he had nearly 30 years of military service. His DD Form 214 indicates he retired in December 1997, and his military occupational specialty (MOS) for over 25 years was systems manager; during his first period of service his MOS was jet engine mechanic, and during his second period of service it was systems manager. A review of his annual performance reports for at least the last 10 years of his Air Force military career shows that he was consistently evaluated with superior marks in various maintenance supervisory roles. For example, he served as maintenance supervisor, quality assurance superintendent, maintenance control superintendent, chief enlisted manager-maintenance superintendent, propulsion flight chief, avionics flight chief, HQ logistics liaison, and group superintendent. He managed facilities and was responsible for equipment worth tens of millions of dollars. Some years he supervised 130 personnel at a time. In a report covering December 1995 to November 1996, he assisted in the leadership and technical supervision for over 550 people. Moreover, after service, VA Vocational and Rehabilitation records dated in 2003 indicate that he earned an AS degree in Aircraft Electrical Systems and that he was formerly employed from 1998 to 2001 by an nationally known university as a property control clerk and in campus safety (he left to earn more money) and from 2001 to April 2003 by a sod farm and distribution company as a supervisor, coordinator, and dispatcher (he left because the job required too many hours and he said he could not physically handle it). The Veteran may not hold a 4-year college degree, but his decades of supervisory experience in the field of aircraft (and other equipment) maintenance and in groundskeeping/housekeeping and facility maintenance, as well as a coordinator (including in sales) of supplies and materials involved in farm operations and in the maintenance of university buildings, is shown to be quite extensive. Turning to the medical evidence for the period considered in this appeal, it is not convincingly shown that the Veteran's service-connected disabilities prevented substantially gainful employment. For example, on an April 2012 VA spine examination (following low back surgery the previous year in February 2011, but prior to the period at issue), the Veteran complained of continuing aches and pains and difficulty with sitting, standing, bending, walking, and climbing. He also reported having no flare-ups that impacted the function of his thoracolumbar spine. The examiner acknowledged the functional loss, including pain on movement, less movement than normal, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing, but also concluded that the back condition did not impact the Veteran's ability to work. In January 2013, the examiner reviewed additional treatment records that were received into the record after the examination and concluded that no changes were needed to the prior report. A December 2013 statement by a private doctor (JS, DO) indicates that a review of the Veteran's records confirms that he is "significantly disabled" and is "totally disabled" during symptom exacerbations. However, Dr. JS does not describe the nature and frequency of the exacerbations, including how they are triggered/or whether they may be avoided, and whether they preclude the Veteran from all types of work for which he is suited. It is not until May 2018 that the Veteran's private neurosurgeon (FV, M.D.) asserts in a statement that the Veteran was unable to obtain or maintain substantial employment due to his lumbar spine disability, lower extremity radiculopathy, coronary artery disease, and hypertension. In another May 2018 statement, his private primary care physician (DP, M.D.) asserted he had known the Veteran since November 2017 and found his lumbar spine disability had worsened to the point that he was unable to work. These private statements do not reference the Veteran's functional capacity status for the period at issue, and it would be speculative and beyond the Board's purview to give them retroactive effect. Thus, the medical statements addressing the Veteran's ability to work do not persuasively support that he was unemployable due to service-connected disabilities for the appeal period. Treatment records likewise show the Veteran's low back and lower extremity disabilities restricted his activities but do not establish that he was impacted to the extent that he would be unable to work. VA outpatient records in April 2013 indicate that he used a back brace and cane for pain and stability reasons. At that time, he reported that his back continued to hurt but that his back brace helped with pain relief and enabled him to get around. He walked on a treadmill with his back brace on, for exercise, for 20-30 minutes. An April 2014 VA primary care follow-up note states that he worked out three times a week for 30 minutes on a treadmill. On a review of systems at that time, he denied pain in the lumbar region or the extremities. An April 2015 VA primary care follow-up note indicates he reported chronic back pain that sometimes radiated to his right leg; he requested a TENS unit and a back brace. On a review of systems at that time, he denied pain in the lumbar region and in the extremities; a TENS unit was issued a in May 2015. A May 2016 VA outpatient record notes he reported that standing, sitting, and walking caused pain in his back which traveled to both legs but mostly the left leg to worsen if it was prolonged, and without a lumbar brace he could not do anything. He also took pain medications when needed. On a June 2016 orthopedic surgery consult, the Veteran described the pain as both sharp and dull, constant in nature, and worse with standing, bending, or lifting. He also reported numbness of the left lateral thigh and a current resting pain of 2 (with 10 being the highest). A September 2016 VA administrative note, upon review of outside medical records (regarding physical therapy services by a non-VA provider), indicates that the Veteran had a diagnosis of low back pain and difficulty walking. He reported a need to rest every 15 minutes (while caring for his spouse with a decline in activities of daily living), decreased endurance and mobility, mild to moderate lumbar spine pain, and guarding. His physical therapy session demonstrated increased flexibility, range of motion, endurance, slight changes in pain with marked improvement with application of electric modality. In early November 2016, (non-VA) physical therapy records showed the Veteran reported some regression of range of motion (of the spine) and increased pain due to hurricane cleanup; he was switching tasks around to avoid performing one task too long. By late November 2016, there were mild to moderate symptoms, overall improvement in function, and tolerance to activity (he performed 45 minutes of activity before having to rest). Overall, such treatment evidence shows the chronic nature of his low back and lower extremity pain that increased on use, but such records do not show that all gainful employment for which he was suited would be prohibited by his functional limitations from service-connected disability. From what can be concluded from the medical evidence, the Veteran experienced increased pain and further functional limitation upon prolonged walking, standing, bending, and the like. Regarding his duties of inspector, which apparently required travel and much physical exertion, the Veteran was unable to continue his most recent job from which he retired in November 2013. Statements from two co-workers dated in February 2012 attest to his frequent need to stop for breaks during inspections due to back pain and that his resignation was caused by his physical inability to perform his work. However, considering the medical and lay evidence, the Board finds that, except for types of employment that would entail prolonged physical exertion (such as his last job), it does not appear that the Veteran would have been constrained in any number and types of workplace environments. Stated another way, there is not compelling evidence that he was incapable of performing work that required only minimal physical effort, and could be done primarily seated, with opportunity for adjustments, as needed (work characterized more by use of mental skills rather than physical exertion, for which he is shown to have ample aptitude). Given that he is not inhibited by any service-connected mental impairment, it is reasonable to find that the physical and mental acts necessary to engage in some form of gainful employment existed for him prior to July 7, 2017 despite his service-connected disabilities. In short, the Board is not convinced that prior to July 7, 2017 the Veteran's service-connected disabilities were of such severity to preclude him from many forms of gainful employment, particularly supervisory, sales, and/or coordinator jobs that require minimal, if any, physical exertion. Considering only his service-connected disabilities, he is not shown to have been incapable of performing jobs in which he could utilize his managerial and coordinator skills and, where necessary, delegate any tasks and responsibilities that would be too physically taxing for him. The Board is not suggesting that his service-connected disabilities for the appeal period would not have presented difficulty in obtaining and maintaining substantially gainful employment. With an evaluation of 60 percent from November 2013, his symptoms were certainly not insignificant, and restricted him to certain types of functions in light of his inability to bend, or walk or stand for prolonged periods. While his formal education did not include a 4-year college degree (he appears to have completed an associate's degree), the Veteran's extensive work history both in the military and after service in various positions in management, in sales, and as a coordinator of supplies/materials reflects that he possesses a set of skills that would have been desirable in and transferable to an array of jobs he could perform that were not inconsistent with the physical limitations imposed by his service-connected disabilities. His last particular job (with its requirement of inspections and travel) notwithstanding, supervisory or management type work would not necessarily have required the physical labor that was made difficult or impossible by his service-connected disabilities. In reviewing the totality of the evidence, the Board is not persuaded that prior to July 7, 2017 the functional loss from his service-connected disabilities (most notably his back and lower extremities) precluded him from participating in a substantially gainful occupation consistent with his level of education, work history, and capability. Accordingly, it is the Board's judgment that the preponderance of the evidence is against the claim for a TDIU rating both on a schedular and extraschedular basis prior to July 7, 2017, and the appeal for an earlier effective date for a TDIU rating must be denied. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.