Citation Nr: 21073307 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 12-19 056 DATE: December 8, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) due to service connected disabilities prior to July 17, 2012, to include on an extraschedular basis, is denied. FINDING OF FACT For the period prior to July 17, 2012, the Veteran's service-connected disabilities did not preclude him from securing or following any substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 17, 2012, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1976 to July 1981 and from May 1982 to May 2001. In May 2021, the Board of Veterans' Appeals (Board) remanded the matter on appeal for additional evidentiary development. As the requested development has been completed, the matter has been properly returned to the Board for adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU prior to July 17, 2012, to include as on an extraschedular basis, is denied. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 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); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16 (a). Prior to July 17, 2012, service connection was established for a lumbar spine disability, rated as 20 percent disabling, radiculopathy of the right lower extremity, rated as 10 percent disabling, radiculopathy of the left lower extremity, rated as 10 percent disabling, and for allergic rhinitis and sinusitis, residual scar status-post ganglion cyst removal of the right wrist, tinea pedis and onychomycosis, and pseudofolliculitis barbae, each rated 0 percent disabling. The Veteran's service-connected disabilities combined to a total 40 percent disability rating prior to July 17, 2012. Thus, he did not meet the schedular criteria for a TDIU for the period prior to July 17, 2012. While the Veteran does not meet the schedular criteria for a TDIU prior to July 17, 2012, 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 and Pension 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 May 2021 Board remand referred the TDIU claim for extraschedular consideration. In September 2021, the Director of Compensation Service evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16 (b). The Director found that during the period prior to July 17, 2012, the Veteran was not found to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. While she determined that the Veteran demonstrated physical limitations due to his service-connected lumbar spine disability that likely impaired his ability to work as a truck driver, she also observed that he had four years of a college education. The Director found that his educational background evidenced an aptitude to learn new skills, including those that did not require strenuous physical labor. She concluded that the evidence showed only that the Veteran was limited in performing the duties associated with a certain position; it did not convincingly show that the Veteran's ability to work in other positions was entirely compromised by the disabilities incurred in service. Although the Board may not award a TDIU on an extraschedular basis without the Director's decision, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (finding that the Director's decision denying or awarding an extraschedular rating is in essence the de facto decision of the agency of original jurisdiction and, as such, is no different than an RO's decision in terms of its effect on the Board's statutory jurisdiction and the Board's standard of review). The question remains, then, whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage") prior to July 17, 2012. See 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is shown when the Veteran's earned annual income does not exceed the federal poverty threshold. Marginal employment is also shown when earned income exceeds the federal poverty threshold if the employment is in a protected environment, such as a family business or sheltered workshop. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. Rather, the ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363 (1993). However, VA does consider such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (b), 4.19. The Veteran has reported that he has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, primarily his lumbar spine disability, since 2008. As an initial matter, the Board notes that VA attempted to elicit detailed employment and educational information from the Veteran by sending him a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability in January 2017. The Veteran returned a blank copy of the form in February 2018. Thus, the Board's information regarding the Veteran's employment and educational history has been gleaned from his Social Security Administration (SSA) records and VA examination reports, both of which indicate that the Veteran left his job of three years as a sweeper truck driver in 2008 and has 4 or more years of college education. VA treatment records from 2009 through 2012 indicate the Veteran's complaint and treatment for severe back pain and subsequent radiation into his lower extremities that progressively impacted his ability to stand and walk for extended periods of time. The Veteran underwent the only VA examination during the appeal period in May 2009. He reported experiencing stiffness and localized, sharp, severe pain that occurred about three times a day and lasted for about an hour. The Veteran indicated that the pain was elicited by physical activity and relieved by rest. At the time of the examination, he indicated that he could function with medication and was not receiving any treatment for the condition. He denied numbness, loss of bladder or bowel control, and infection. The Veteran's range of motion was limited due to pain; however, he reported that the condition had not resulted in any incapacitation, nor did he experience any functional impairment from it. Considering the totality of the evidence of record pertaining to the Veteran's service-connected disabilities, the Board acknowledges the Veteran's service-connected lumbar spine and radiculopathy disabilities may have interfered with the physical acts required by some forms of employment, as the medical record indicates a progressive worsening of pain that impacted the Veteran's ability to walk or stand continuously. However, the Board finds that the Veteran's service-connected lumbar spine and radiculopathy disabilities on their own would not totally preclude employment, such as in a sedentary position. Withers v. Wilkie, 30 Vet. App. 139, 147-49 (2018) (the Court held that because VA does not define "sedentary employment" in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis and must explain the meaning derived from that concept). To that end, the Board notes that per Dorland's Illustrated Medical Dictionary, 1687 (32nd ed. 2012), "sedentary" is defined as "sitting habitually; of inactive habits;" "pertaining to a sitting posture." While the Board is aware that the Veteran worked as a sweeper truck driver for three years, the record also reflects that the Veteran has four years or more of a college education. The Board agrees with the findings of the Director of Compensation; his education level indicates the ability to learn new skills, including those requiring less physicality. Therefore, it is likely that the Veteran may have been able to secure a computer-related or office job, specifically one that allowed for routine breaks in sitting, standing, or walking, as there is no evidence to support a finding of additional significant impairment, including of his mental faculties prior to July 17, 2012. It is worthy of note that the award of a TDIU from July 17, 2012 was predicated upon both the worsening of the Veteran's service-connected lumbar spine disability and the addition of an acquired psychiatric disability that altered his ability to handle the stresses of a work environment. Further, the Board also notes that the assigned disability ratings already contemplated that he has an impairment in his earning capacity due to his service-connected lumbar spine and radiculopathy disabilities. While the Board does not doubt the Veteran's service-connected disabilities impacted occupational functionality prior to July 17, 2012, the evidence does not support the contention that his service-connected disabilities alone were of such severity to preclude participation in substantially gainful employment. Based on the evidence in the claims file, the Board finds that the symptomatology associated with the service-connected disabilities were appropriately compensated by way of the combined disability percent ratings assigned. Considering the VA examination of record and the discussion of symptomology contained therein and medical records, the Board finds the evidence weighs against finding that the Veteran's service-connected disabilities alone prevented substantially gainful employment. Thus, the Board finds that the evidence of record does not indicate that a TDIU is warranted, to include on an extraschedular basis. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.