Citation Nr: 21076987 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-38 816 DATE: December 28, 2021 ORDER For the period from June 19, 2011 to November 21, 2018, a referral of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for is denied. For the period from November 21, 2018, TDIU is denied. FINDINGS OF FACT 1. For the period from June 19, 2011 to November 21, 2018, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to the service-connected disabilities. 2. For the period from November 21, 2018, the Veteran was not rendered unable to obtain or maintain substantial gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. For the period from June 19, 2011 to November 21, 2018, referral of TDIU for consideration is denied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(b), 4.18, 4.19. 2. For the period from November 21, 2018, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(a), 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from January 1980 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision from the Regional Office (RO) that granted service connected for a low back disability and assigned a 10 percent initial rating from July 19, 2011 (date of claim). The Veteran appealed the initial rating for the back. During the pendency of the appeal for a higher initial disability rating for the low back disability, evidence of unemployability due to the service-connected low back disability was received into the claim file, which raised an inferred claim for TDIU that attached to the claim for a higher initial disability rating for the low back disability for the rating period from July 19, 2011. See November 2020 VA examination report; Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). In April 2021, the Board remanded the TDIU issue on appeal for additional development, to provide notice of an inferred claim for TDIU, and to provide the TDIU claim form (VA Form 21-8940). The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the April 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran has not completed and submitted the TDIU claim form. The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. TDIU LEGAL CRITERIA Disability ratings are determined by applying the criteria set forth in VA's Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (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. 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 substantial 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). 1. Whether TDIU referral from July 19, 2011 to November 21, 2018 For the period from July 19, 2011 to November 21, 2018, the service-connected disabilities are migraine headaches, lumbar strain with muscle spasms (low back disability), breast cancer, surgical scar status post left partial mastectomy (surgical scar), and feet strain. Prior to November 21, 2018, the Veteran did not have one service-connected disability rated at least 60 percent, or one service-connected disability rated at least 40 percent with a minimum combined rating of at least 70 percent for all service-connected disabilities, so the service-connected disabilities do not satisfy the threshold combined rating percentage requirements for consideration of TDIU for the rating period from July 19, 2011 to November 21, 2018. 38 C.F.R. § 4.16(a). Having considered all the evidence of record, lay and medical, the Board finds that for the period from July 19, 2011 to November 21, 2018, referral to the Compensation and Pension Director for TDIU under 38 C.F.R. § 4.16(b) is not warranted. While the evidence of record reflects that the service-connected disabilities caused some functional limitations and impairment, the evidence does not substantiate a reasonable possibility that for this period the Veteran was unemployable due to the service-connected disabilities. 38 C.F.R. § 4.16(b); Snider v McDonough, No. 19-6707 (November 19, 2021) (holding that the initial decision of whether to refer TDIU to the Director of Compensation under 38 C.F.R. § 4.16(b) 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 v. Wilkie, 31 Vet. App. 58, 66 (2019). During the relevant rating period, the service-connected migraine headaches manifested as periodic headaches with debilitating or prostrating headaches on a monthly basis with associated visual aura, photosensitivity, and nausea, which the Veteran managed with medication and laying in a dark room as needed. Treatment notes suggest improvement in headaches over the years as prostrating headaches had decreased in duration from lasting one to three days to lasting for about an hour in duration, after which the Veteran reported that the headaches become tolerable due to medication. See October 2012, August 2018; May 2012 VA examination report. The Veteran's service-connected low back disability has manifested as pain, muscle spasms, and tenderness in the lower back that the Veteran has managed conservatively with medications, physical therapy, chiropractic adjustments, or rest during flare ups of pain. The record shows that the Veteran has maintained full range of motion to no less than 75 degrees of flexion in the lumbar spine due to the low back disability, to include due to increased pain during an episode of flare up. The Veteran only endorsed flare ups of increased pain two to three times a month when she has to lift groceries. See February 2011, October 2012, December 2012; see also May 2012, November 2020 VA examination reports. As for the Veteran's breast cancer, the evidence indicates that the Veteran has a history of breast cancer in 2000 for which she underwent a lumpectomy in September 2000, with no recurrence of malignancy since then. Although the Veteran has endorsed some tenderness of the surgical scar status post lumpectomy, the surgical scar was not painful or unstable upon examination, and treatment notes are silent for complaints, symptoms, treatment, or any functional impairment associated with the surgical scar. See May 2012 VA examination report; September 2000, May 2009, February 2011, September 2014 VA treatment records. Additionally, the service-connected bilateral foot disability has manifested as history of foot pain during service, which the Veteran has managed with shoe inserts. The bilateral foot condition appears to have improved since service, per the Veteran's subjective report during the May 2012 VA examination and a review of the relevant treatment records, which are silent for complaints, diagnosis, or treatment of a foot problem during the relevant period. See May 2012 VA examination report. Overall, the evidence indicates that prostrating migraines occur about once a month on average and they are responsive to treatment within an hour of taking medication, so can be accommodated during a normal one-hour break during an eight-hour workday. At most, it does not appear that the Veteran's headaches would require absence in excess of three days a month, if at all. The Veteran has maintained normal to no less than 75 degrees of flexion in the spine and endorsed flare ups of pain with lifting groceries, which suggest that the upper limits of the Veteran's exertional abilities would preclude occupational activities that require lifting moderate to heavy weight to prevent exacerbating the low back disability. The Veteran also reported during a November 2018 VA examination that she does yoga twice a week, completes her own shopping, and does her own household chores, which indicates that the Veteran maintains the capacity for some physical activity, including bending and flexing the spine despite functional limitations of the low back disability. It does not appear that the Veteran would be precluded from occupations that require lifting negligible to no more than ten pounds of weight, which are performed primarily in a seated position and require no more than occasional walking or standing (e.g., up to one third of an 8-hour workday). Such occupations should also be suitable to accommodate the Veteran's bilateral foot strain, which the Veteran reported has improved since service and is managed with no more than shoe inserts. Furthermore, aside from some tenderness of the surgical scar, the evidence does not reflect any significant functional limitations attributable to the surgical scar or the history of breast cancer, which has not reoccurred since 2000. As such, it does not appear that the surgical scar status or history of breast cancer have caused any functional impact on the Veteran's employability. The evidence also indicates that the Veteran has a bachelor's degree in business administration, and was previously employed as a software tester and network administer between 1984 to 1999, so likely has transferable skills that would be suitable for various skilled, semi-skilled, and unskilled occupations that do not require a lot of walking, standing, lifting, carrying, pushing, or pulling. Furthermore, the most probative evidence during the period from July 19, 2011 to November 21, 2018 indicates that the Veteran was employed throughout the period despite the functional limitations of the service-connected disability. Treatment notes show that the Veteran reported owning a home building and electrical rehab business together with her husband, and reported doing administrative work for the business, which is commiserate with the education level and work experience. See December 212, February 2013, June 2018 VA treatment records, December 2018 VA examination report. As such, the most recent evidence of record indicates that the Veteran is computer literate, has a bachelor's degree in business administration, and was actively employed running an electrical business, so has not been unemployable due to service-connected disabilities during the period on appeal from July 19, 2011 to November 21, 2018. Although the service-connected disabilities have caused some functional impairment commensurate with the degree of compensation, and the Board has noted and considered specific functional impairments caused by each disability, the evidence of record does not substantiate a reasonable possibility that the Veteran was unemployable by reason of the service-connected disabilities during the TDIU claim period from July 19, 2011 to November 21, 2018. The more probative evidence of record shows that the Veteran was employed through 2018. There is no additional, subsequent evidence of record to contradict the Veteran's own, last reported employment as of June and December 2018, when the Veteran was reporting such history during a VA examination and VA outpatient encounter. For these reasons, the evidence does not substantiate a reasonable possibility that the Veteran was unemployable by virtue of the service-connected disabilities, or that the Veteran was actually rendered unable to obtain or maintain substantially gainful employment by virtue of the service-connected disabilities during the relevant period on appeal; therefore, a referral of TDIU for consideration for the period from July 19, 2011 to November 21, 2018 must be denied. 2. TDIU from November 21, 2018 For the period from November 21, 2018, the service-connected disabilities are depressive disorder, migraine headaches, low back disability, bilateral lower extremity radiculopathy (femoral and sciatic nerves), bilateral foot strain, breast cancer, surgical scar, and chronic fatigue. The combined disability ratings are 70 to 80 percent from November 21, 2018. From November 21, 2018, the service-connected disabilities meet the combined rating percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU. Having considered all the evidence of record, lay and medical, the Board finds that a TDIU from November 21, 2018, forward, is not warranted. While the evidence of record reflects that the service-connected disabilities caused some functional limitations and impairment, the weight of the evidence shows that the service-connected disabilities did not preclude the Veteran from obtaining (securing) or following (maintaining) substantial gainful employment during the TDIU claim period. A review of the evidence shows that the service-connected psychiatric disability has manifested as occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, including due to symptoms of depressed mood; anxiety; panic attacks weekly or less often; chronic sleep impairment; flattened affect; disturbance of mood and motivation; difficulty in establishing and maintaining effective work relationships; and intermittent inability to perform activities of daily living. Nevertheless, treatment notes generally show that the Veteran has remained stable from a psychiatric standpoint, with no history of psychiatric hospitalization and management of symptoms with medications and supportive psychotherapy. Treatment notes indicate that the Veteran has remained fully oriented with normal speech, appropriate appearance, euthymic mood and affect, logical and coherent thought processes, no suicidal or homicidal ideation, no perceptual thought disturbances, and good insight and judgment. See December 2018, December 2019 VA examination reports; see also May 2021, July 2021 VA treatment records. As for the low back disability, the evidence continued to show tenderness, muscle spasms, and painful limitation of motion during flare up episodes, with flexion between 85 to 75 degrees. During a 2021 VA encounter, the Veteran continued to endorse chronic back pain but denied any acute exacerbations of back pain. The service-connected bilateral lower extremity radiculopathy has manifest as no more than mild intermittent pain, paresthesias or dysesthesias, and numbness in the bilateral lower extremities when symptomatic, but otherwise normal movement of the extremities with intact strength, no focal neurological deficits, and normal gait. See February 2011, October 2012, December 2012, June 2021 VA treatment records; see also May 2012, November 2020 VA examination reports. Migraine headaches have manifested as periodic headaches, of which the Veteran reported bad headaches about twice a month; however, the Veteran reported that the headaches remain responsive to treatment with Naproxen or Motrin. While the Veteran reported a history of headaches and an isolated episode of right monovision loss for 5 to 10 minutes during a July 2021 VA neurology encounter, the treating physician noted that the monovision loss did not appear to be a part of the service-connected migraines, as the episode of monovision loss was different than the visual aura that is typically associated with the Veteran's migraine headaches. The treating physician noted that the episode of monovision loss was concerning for transient ischemic attack (TIA) or giant cell arteritis (GCA), so has not been related to the service-connected migraines. See July 2021 VA treatment records; May 2012 VA examination report. As for the breast cancer, surgical scar, and bilateral foot disabilities, the evidence does not reflect a recurrence of breast cancer during this period. Treatment records show no complaints, symptoms, or treatment of the surgical scar and bilateral foot disability, tending to show that the disabilities have not presented significant functional limitations during the TDIU period. The Veteran has endorsed some chronic fatigue since undergoing treatment for breast cancer; however, the chronic fatigue does not require treatment with medication and does not caused debilitating fatigue that reduces the Veteran's activity level by greater than 50 percent. See May 2012, January 2020 VA examination reports; October 2020 VA treatment records. During the November 2020 VA back examination, the VA examiner assessed that the Veteran has functional limitations in activities such as standing, sitting, and walking for periods and needs to change positions frequently due to pain, stiffness, poor range of motion, and radiculopathy. The VA examiner assessed that the Veteran's functional limitations impair the ability to function in an occupational environment, both in physically demanding and sedentary occupations. During other VA encounters the Veteran's lay reports, made for the purpose of treatment, indicate that she is active around the home; however, she does sit most of the day, which suggests that she does not have significant limitations in sitting for periods of time. The Veteran denied needing assistance transferring from the bed to a chair, as well as for moving around indoors or outdoors. See July 2021 VA treatment record. While the Veteran's physical and mental disabilities would likely impact the ability to meet the demands of physically laborious employment that requires moderate to heavy lifting and carrying, as well as prolonged walking or standing, the evidence does not suggest that the Veteran is precluded from work that is performed primarily seated that will allow transfer from seated to standing at will to accommodate the functional limitations. While psychiatric and migraine symptoms may cause some functional limitations in an occupational setting, the record indicates that psychiatric and headache symptoms have remained stable with medication management, so should not preclude the ability to perform unskilled, semiskilled, work that does not required regular interaction with the public. The evidence of record indicates that the Veteran has remained fairly functional in maintaining daily activities despite the service-connected physical and mental disabilities. The evidence of record indicates that the Veteran is active around home and maintains the ability to prepare meals, shop, do household chores, move about, and manage finances without assistance or supervision. The Veteran has a bachelor's degree in business administration. Treatment notes reflect the ability to understand verbal, written, and visual instructions, that the Veteran prefers learning through reading and discussion, that the Veteran is computer literate, having an employment history testing computer software and teaching computer systems in the past. The Veteran is also an active participant in the MOVE weight loss program, and works out on a stationary bike 30 minutes a day, stretches 30 minutes a day, lifts 5 to 10 pounds about three times a week, has lost about 10 pounds over a two-month period, continues to attend yoga about twice a week, goes out to dinner monthly with her friends, and maintains good relationships with family. See June 2021, July 2021; see also December 2018, December 2019 VA examination reports. The latest and most probative evidence from the Veteran shows ability to maintain employment despite the functional limitations of the service-connected disabilities. The evidence of record reveals that the Veteran has been actively employed throughout the period on appeal. Specifically, treatment notes dated from 2018 through 2021 reflect that the Veteran has reported owning a residential building and electrical rehab business, doing administrative work. The Veteran also reported that working as a notary signing agent as well. See June 2018, April 2021, May 2021, June 2021, July 2021 VA treatment records; December 2018 VA examination report. In May 2021 and August 2021 letters the RO informed the Veteran of the inferred claim for TDIU and asked the Veteran to complete and return the enclosed TDIU claim forms (VA Form 21-8940), which would provide pertinent evidence regarding what service-connected disabilities, if any, affect the Veteran's employability; the Veteran's educational history; and the Veteran's current employment status. While the Veteran acknowledged receipt of notice of the inferred TDIU claim and the enclosed TDIU claim form, the Veteran has yet to submit a completed TDIU claim. See May 2021, August 2021 Development letters; see also October 2021 Correspondence. As noted above, the most recent evidence of record indicates that the Veteran is computer literate, has a bachelor's degree in business administration, and is actively employed running an electrical business and working as a notary signing agent, so has not been unemployable due to service-connected disabilities during the period on appeal from November 21, 2018. Although the service-connected disabilities have caused some functional impairment commensurate with the degree of compensation granted, and the Board has noted and considered specific functional impairments caused by each disability and their collective impact, the weight of the evidence of record is against finding that the service-connected disabilities have precluded the Veteran from obtaining (securing) or following (maintaining) substantial gainful employment during the TDIU claim period. The more probative evidence of record shows that the Veteran remains employed as of 2021. There is no additional, subsequent evidence of record to contradict the Veteran's own, last reported employment as of July 2021, when the Veteran was reporting such history during a VA treatment encounter. For these reasons, for the period from November 21, 2018, the weight of the lay and medical evidence of record shows that the Veteran was not rendered unable to obtain or maintain substantially gainful employment by virtue of the service-connected disabilities during the relevant period on appeal; therefore, the appeal for TDIU from November 21, 2018, on the merits, must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.