Citation Nr: A21017828 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 210902-182499 DATE: November 3, 2021 ORDER A total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1964 to November 1967 and January 1968 to February 1985. In April 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of a May 2017 rating decision based on new and relevant evidence. In May 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim for entitlement to TDIU based on the evidence of record at the time of that decision. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38C.F.R. § 20.301. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) Legal Criteria A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation 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, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran's service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. Factual Background & Analysis Initially, the Board notes that the Veteran filed a formal application for entitlement to TDIU in April 2021. During the pendency of his appeal, the Veteran alleged being unemployable since February 14, 2014 when he held his last fulltime job. The Veteran noted that he became too disabled to work on February 14, 2014 due to his back condition. The Veteran also noted that he did not leave his last job due to his disability and that he has not tried to obtain employment since becoming too disabled to work. See April 2021 VA Form 21-8940. The Veteran is claiming he is unemployable due to his service-connected physical conditions. See September 2021 VA 4138 Statement. The May 2021 rating decision found that the Veteran is not working and that he resigned as a truck driver on September 16, 2013. The Board is bound by these favorable findings. Here, the Veteran is service-connected for degenerative disc disease lumbar spine, evaluated as 40 percent disabling from June 2, 2014; left foot first metatarsal and first cuneiform arthrodesis with residual pain (previously rated as residuals, surgery, left foot, with degenerative joint disease, left first metatarsal), evaluated as 20 percent disabling from May 30, 2006; left lower extremity peripheral neuropathy (sciatic nerve) associated with degenerative disc disease lumbar spine, evaluated as 20 percent disabling from June 2, 2014; left lower extremity peripheral neuropathy [femoral nerve]associated with degenerative disc disease lumbar spine, evaluated as 20 percent disabling from June 2, 2014; residuals, fracture, right long finger, evaluated as 10 percent disabling; hypertension, evaluated as 10 percent disabling from June 2, 2014; right lower extremity peripheral neuropathy (sciatic nerve) associated with degenerative disc disease lumbar spine, evaluated as 10 percent disabling from December 21, 2015; adjustment disorder with depressed mood associated with degenerative disc disease lumbar spine, evaluated at 10 percent from September 29, 2020; scar, left foot associated with left foot first metatarsal and first cuneiform arthrodesis with residual pain (previously rated as residuals, surgery, left foot, with degenerative joint disease, left first metatarsal), evaluated as 0 percent disabling. The Veteran's combined disability rating is evaluated at 80 percent. Accordingly, the Veteran has met the schedular criteria throughout the period on appeal. Following a review of the evidence of record, and as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to a TDIU rating as the probative evidence of record does not document that the Veteran's service-connected disabilities have precluded him from securing or following a substantially gainful occupation. In his April 2021 application for entitlement to TDIU the Veteran reported he last worked as a truck driver from 2003 to January 2013. Prior to that, the record shows he worked for a lumber yard for a brief period after service, worked at a lawn center and as prison guard until 1998 and then worked as a truck driver from 1998 to 2014. On his application for TDIU he reported having a high school education, with one year of college and no additional education or trainings. The record shows several VA forms 21-4192 from the Veteran's last employer, McGuire Transportation. While the employer has been consistent that the Veteran last day of work was September 16, 2013, the reasons for termination of employment has varied. In May 2016, the reasons stated was "non insurable." In October 2016, the reason was "unknown." An undated VA Form 21-4192, submitted in November 2011, the reason was "medically retired," and lastly in May 2021, the reason stated was "resigned". A February 2021 VA mental disorders examination documents the Veteran's report that he left his job as a truck driver after developing cataracts. A January 2020 VA treatment mental health note shows the Veteran reported "neck and back pain all the time so I can do very little but just sit at home." The psychiatrist noted the Veteran has significant physical complaints of back pain, neck pain and numbness in his hands, which limit his mobility and has him staying home most every day. He also noted that the Veteran is depressed and discouraged about his lack of mobility. An August 2020 VA treatment note indicates the Veteran "is quite worried about not working and says that he really would like to work again but could not pass the patient is to continue driving a truck in 2014, but since his had his cataracts removed but now his shoulder hurts him so much that he doesn't think he can effectively work." Following his April 2021 TDIU claim, the Veteran was afforded a VA examination for the back disability in May 2021. The examiner opined that the Veteran's service-connected back conditions impact his ability to work. The examiner noted the Veteran reports of ongoing chronic back pain that grossly affects his sleep as well as day-to-day activities, pain from his "neck down to my lower back," noting pain also extending into both legs with left more than right. The examiner stated that the Veteran uses a walker and reported difficulty sitting, standing and walking for any long period of time. The Veteran also reported that his wife does "most of the driving." The examiner further noted "[v]teran also states "it takes me a while to get dressed...takes me a while to get up from a sitting position and get going...I can't stand for a long time... I'm not doing very well... I've got 3 spots messed up with pain running to my shoulder and neck". Veteran reported use of a back brace, pain medication and support rails in his bathroom due to falling in the past. A previous February 2019 VA examination for back conditions noted functional impact as limited walking, standing and bending. Given the above, the Board finds that the preponderance of evidence weighs against the claim of entitlement to a TDIU rating, as the probative evidence does not show that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Notably, the May 2021 VA examination reports discussed above documented functional impact as a result of the Veteran's service-connected lower spine disability but also as a result of his neck and shoulder. VA treatment records indicate that back pain, neck pain and numbness in his hands limit his mobility. To date, the Veteran is not service connected for a cervical spine or a shoulder condition. Moreover, no examiner has opined that such limitations would not have been prevented the Veteran from duties similar to his prior occupation of truck driver, as the evidence was not showing that he was precluded from prolonged sedentary activity. Finally, the Board finds it significant that the Veteran's own April 2021 TDIU application reported that he left his previous job as a truck driver in 2013, but not because of his claimed disability and has stated multiple times that he left his job due to his cataracts. The evidence does not show that the Veteran's service-connected disabilities precluded his gainful employment. The Veteran indicated in his April 2021 application that his reason for leaving his job in 2013 was not due to disability. VA treatment records show that his non-service-connected cataracts, cervical spine and shoulders conditions prevented him from securing or following substantially gainful employment. Non-service-connected disabilities are not to be considered for TDIU purposes. Furthermore, there is no probative evidence in the record to indicate the Veteran's service-connected connected lumbar spine, bilateral lower neuropathies sciatic nerve, left lower neuropathy femoral nerve, left foot, hypertension, right long finger, adjustment disorder and left foot scar conditions precluded him from securing or following substantial gainful employment. More importantly, however, is the fact that the question of employability is ultimately a legal one, not a medical one and based on the foregoing, the Board finds that the Veteran's service-connected disabilities have not render him unable to secure and follow a substantially gainful occupation. Specifically, while he does have some limitations associated with such disabilities such limitations alone are not of sufficient severity to produce unemployability. The Board does not doubt that the Veteran's service-connected lumbar spine, bilateral lower neuropathies sciatic nerve, left lower neuropathy femoral nerve, left foot, hypertension, right long finger, adjustment disorder and left foot scar had some impact on his employability. However, the schedular evaluation in effect recognizes industrial impairment resulting from his service-connected disabilities. Nevertheless, the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. (Continued on the next page) As such, while the Board has carefully reviewed the evidence of record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has been precluded from securing or following a substantially gainful occupation consistent with his educational and vocational history due to his service-connected disabilities. As the probative evidence of record weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim of entitlement to a TDIU rating is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.