Citation Nr: 21069934 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-25 942 DATE: November 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities do not meet the schedular criteria for TDIU. 2. The preponderance of the evidence does not demonstrate a reasonable possibility that the Veteran's service-connected lumbar spine degenerative disc disease with herniated nucleus pulposus and spinal stenosis and low back scar cause unemployability. CONCLUSION OF LAW The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 30, 2007 to July 20, 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to TDIU is denied. The Veteran contends that she is unemployable due to her service-connected lumbar spine disability. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (February 2012); Statement in Support of Claim (November 2015). She stated that she can no longer work as a vet tech or vet assistant due to her back disability. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (February 2012); Statement in Support of Claim (November 2015). The Board finds that sufficient evidence does not exist to substantiate a reasonable possibility that the Veteran's lumbar spine disability causes unemployability. See 38 C.F.R. § 4.16(b); Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 31 Vet. App. 58, 73. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Ray, 31 Vet. App. at 73. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Ray, 31 Vet. App. at 73. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: lumbar spine degenerative disc disease with herniated nucleus pulposus and spinal stenosis rated at 20 percent; and low back scar, rated at zero percent. Service connection for both was effective September 19, 2011. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider her claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that she is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66. For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of her service-connected disabilities, and therefore referral of the claim is not warranted. The Veteran reported that she worked as a veterinarian tech or assistant from 2006 to 2010 and that she can no longer work in that field due to her back disability. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (February 2012); Statement in Support of Claim (November 2015). She stated she was unable to run, she was still on daily anti-inflammatories, and if she sits too long in a car, it causes a lot of pain. See VA 21-4138 Statement in Support of Claim (November 2015). Her most recent employer stated that she worked as a veterinary assistant and that she had not been able to return to work since the injury during her National Guard service. See VA 21-4192 Request for Employment Information in Connection with Claim (February 2012); Medical Treatment Record Non-Government Facility (February 2012). That employer noted the Veteran's duties included assisting in examination and surgery rooms, assisting with lab, radiology, and treatment, and assisting with large animal and kennel work. See VA 21-4192 Request for Employment Information in Connection with claim (February 2012). Another prior employer noted that the Veteran quit without explanation. See VA 21-4192 Request for Employment Information in Connection with Claim (June 2013). The Veteran provided no other information regarding her education, skills, or work experience. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of her service-connected lumbar spine disability. At a June 2013 VA back examination, the Veteran reported that she cannot bend at the waist, cannot sit down or get up from the toilet, cannot walk the stairs, and either is in bed or sits in recliner. She takes narcotic medications during flare-ups. See VA Examination (June 2013). After examination, the examiner found there was no additional limitation of motion upon repetitive use or additional functional loss or impairment. There was full muscle strength and normal reflexes. See VA Examination (June 2013). The examiner opined that the lumbar spine disability did not impact her ability to work. See VA Examination (June 2013). In a 2021 VA examination report, the examiner found that the lumbar spine disability impacted her ability to work, in that the Veteran was unable to bend over and lift heavy objects over 20 pounds, could not stand or sit for long periods at a time, and had to change positions when the low back starts hurting. See C&P Exam (January 2021). In that examination, the Veteran denied flare-ups, had full range of lumbar spine motion, and pain did not result in functional loss. There was no additional loss of function or range of motion after repetitive use, including over time. See C&P Exam (January 2021). In a November 2011 private record, the Veteran reported increasing back pain. See Medical Treatment Record Non-Government Facility (February 2012). An April 2013 private medical record noted the Veteran was taking pain medications every 6 hours and could not drive while taking these prescriptions. See Medical Treatment Record Non-Government Facility (January 2016). In a September 2013 VA record, the Veteran reported chronic back pain. See CAPRI (November 2019). Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of her service-connected disabilities. Regarding the economic component, the Veteran previously worked as a veterinarian tech, and appeared to earn $25,000 when working full time, which is above the poverty level. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (February 2012); https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed November 16, 2021). Regarding the noneconomic component, the evidence indicates that her most recent employment as a vet assistant did require at least some light labor, to include assisting with examination, treatment, and radiology. The medical evidence indicates that her lumbar spine disability does cause pain and functional limitation; the 2021 VA examiner notes such effects. Additionally, the VA treatment records indicate limitations on her driving ability, but this type of employment does not appear to require driving. However, the Board does not find that requiring frequent position changes and limits on the amount of weight she can lift is "sufficient evidence to substantiate a reasonable possibility" that the Veteran is unemployable. Ray, 31 Vet. App. at 66. These limitations do not appear incompatible with employment as a vet tech. Therefore, referral of the claim for a TDIU is not warranted. Accordingly, the claim is denied. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.