Citation Nr: 21077549 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-61 166 DATE: December 30, 2021 ORDER Entitlement to service connection for a left hip condition, to include as secondary to service-connected degenerative disc disease, L-spine (back condition) is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In the August 2021 Joint Motion for Partial Remand, prior to the promulgation of a decision in the appeal, the Appellant indicated that he is not pursuing the appeal as to the Board's denial of entitlement to service connection for a left hip condition, to include as secondary to service-connected degenerative disc disease. 2. From February 15, 2010, to May 31, 2010, the Veteran has been awarded a 100 percent schedular evaluation; therefore, the claim for TDIU is moot; during that period the Veteran had a single disability rated as 100 percent disabling, but he has no other disability rated at 60 percent, nor was he substantially confined to his dwelling by his service-connected disabilities. 3. From June 1, 2010 to June 2, 2014, and from February 1, 2017, the schedular requirements for TDIU were not met, and the Veteran's service-connected disabilities did not preclude him from securing and following a substantially gainful occupation. 4. From June 3, 2014 to February 9, 2017, the Veteran's service-connected disabilities did not render him unable to obtain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a left hip condition, to include as secondary to service-connected degenerative disc disease, L-spine (back condition) by the Appellant or his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The claim for TDIU is rendered moot from February 15, 2010 to March 31, 2010, by the assignment of a 100 percent schedular rating. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for TDIU on an extraschedular basis from June 1, 2010 to June 2, 2014, and from February 10, 2017, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. The criteria for TDIU from June 3, 2014 to February 9, 2017, have not been met. 38 U.S.C. §§ 1110, 1154(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2015 and March 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is of record. The Board remanded this matter in December 2019 and July 2020. In a February 2021 decision, the Board denied the Veteran's claim for entitlement to service connection to a total disability rating based on individual unemployability (TDIU). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the February 2021 decision's denial of entitlement to service connection for a TDIU. On August 30, 2021, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). In the JMPR, the parties agreed that the February 2021 Board decision, was inadequate because the Board did not adequately provide a statement of reasons or bases in its discussion of how the combined effects of the Veteran's service-connected disabilities did not prevent him from obtaining substantially gainful employment. Neither the Veteran nor his representative has otherwise raised any other issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for a left hip condition, to include as secondary to service-connected degenerative disc disease, L-spine (back condition) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In the present case, the Veteran, has asked that his appeal for entitlement to service connection for his left hip condition, to include as secondary to service-connected degenerative disc disease, L-spine (back condition) be dismissed. See August 2021 Joint Motion for Partial Remand. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for entitlement to service connection for the Veteran's left hip condition, to include as secondary to service-connected degenerative disc disease, L-spine (back condition), and it is dismissed. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks entitlement to a TDIU. 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. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). TDIU may also be considered on an extraschedular basis. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Director of the Compensation Service. 38 C.F.R. § 4.16(b). SMC Initially, the Board notes that the claim of entitlement to TDIU has been rendered moot from February 15, 2010 to May 31, 2010, by the award of a 100 percent schedular evaluation for the service-connected back condition. See Bradley v. Peake, 22 Vet. App. 280 (2008). The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. at 294. SMC is payable at a specified rate if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot; or is blind in both eyes, with visual acuity of 5/200 or less; or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). SMC provided by 38 U.S.C. § 1114(s) is payable where the Veteran has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently rated as 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350(h)(3)(i)(1) & (2). Since the Veteran has been awarded a 100 percent disability evaluation for his service-connected back condition from February 15, 2010 to May 31, 2010, entitlement to SMC will be considered. From February 15, 2010 to May 31, 2010, the Veteran was also service connected for tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as noncompensable, not the 60 percent evaluation required by the regulation. There is no indication in the evidence of record that the Veteran was "substantially confined" to his dwelling or its immediate premises because of his disabilities. As such, the criteria for an award of SMC have not been met from February 15, 2010 to May 31, 2010. Moreover, this means that the pending TDIU claim is, in fact, moot, from February 15, 2010 to May 31, 2010. Other than the total rating granted for the back condition, the Veteran's only other service-connected disability was evaluated at 10 percent and noncompensable; thus, the potential for SMC discussed in Bradley and Buie does not apply and consideration of TDIU would result in no additional discernable benefit. Service Connection Rating Periods From June 1, 2010 to June 2, 2014, the Veteran was service connected for a back condition, rated as 20 percent disabling; tinnitus associated with hearing loss, bilateral, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable. The Veteran's combined rating was 30 percent. From June 3, 2014 to February 9, 2017, the Veteran was service connected for a back condition, rated as 20 percent disabling; tinnitus rated as 10 percent disabling; radiculopathy right lower extremity associated with back condition, rated as 40 percent disabling; radiculopathy left lower extremity associated with back condition, rated as 40 percent disabling; and bilateral hearing loss, rated as noncompensable. The Veteran's combined rating was 80 percent. See 38 C.F.R. 4.25. From February 10, 2017, the Veteran is service connected for a back condition, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; radiculopathy right lower extremity associated with back condition, rated as 10 percent disabling; radiculopathy left lower extremity associated with back condition, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable. The Veteran's combined rating is 40 percent. Medical and Lay Evidence In the June 2011 VA Form 21-8940, the Veteran said he last worked in 2009 as a driver/handler. He did not expect to receive disability retirement benefits or Workers' Compensation benefits. His highest level of education was eighth grade. In the December 2016 VA Form 21-8940, the Veteran said that he last worked in 2010 as a forklift driver. He said he expected to receive disability retirement benefits but did not expect to receive Workers' Compensation benefits. His highest level of education was high school. The Veteran said he was told he could not do a job. In a June 2010 spine VA examination, it was noted that the Veteran was unemployed. He had taken a leave of absence following back surgery. The Veteran admitted to 3 months of prescribed bedrest and incapacitation following lumbar surgery done in February 2010. He denied any impediment to his activities of daily living. Regarding impediment to his usual occupation, the Veteran last worked as a laborer. He had taken a leave of absence and had been unemployed for the past 3 months. In a March 2011 Social Security Administration (SSA) record, the Veteran was examined for his low back pain, neck pain, right knee pain, and hypertension. The examiner determined that the Veteran should be able to sit for 8 hours a day during an 8-hour workday. He should be able to move about for 8 hours a day during an 8-hour workday. He should be able to lift and carry heavy objects and handle and manipulate small objects. The Veteran's ability to hear and speak was normal. The examiner concluded that the Veteran should be able to make the appropriate occupational, personal, and social adjustments. In a May 2011 statement, the Veteran said that his medical condition caused him to be unable to perform his duties for his employer. He said he was asked to resign. His ability to walk was drastically diminished due to the constant pain. The Veteran said that he was unable to find employment because of his lack of mobility. Additionally, his medications reduced his ability to be hired. In a June 2011 spine VA examination, it was noted that the Veteran usually worked as a forklift driver. He was currently seeking employment; however, he had been unemployed for 2 years. The Veteran said that no one would hire him due to his back issues. The Veteran reported no effect of claimed condition on his activities of daily living. The examiner stated that the Veteran remained independent for all of his daily activities. He drove his own personal vehicle and left home as he desired. The Veteran enjoyed the use of his home computer, watched TV, managed all of his own financial affairs, and self-administered his own medication. Therefore, the examiner opined that the Veteran could perform gainful sedentary or light employment as he so chose. In a January 2012 audio VA examination, the examiner determined that the Veteran's hearing loss and tinnitus did not impact ordinary conditions of daily life, including his ability to work. In a February 2014 SSA record, it was noted that the Veteran felt he was disabled and unable to work from June 6, 2012, because of right knee problems, 4 ruptured discs in spine, high blood pressure, depression, cholesterol, and sleep issues. SSA determined based on the medical evidence that the Veteran was disabled; however, his disability did not begin until May 31, 2013. In a February 2015 hearing loss and tinnitus VA examination, the Veteran said that his hearing loss impacted his daily life and/or ability to work and said that others complain he could not hear; however, this did not really bother him. The Veteran said his tinnitus did not impact his daily life or ability to work, but rather it affected everyone else. In a March 2015 back VA examination, the examiner determined that the Veteran's back condition did impact his ability to work. The Veteran was able to lift 10 to 15 pounds, walk 1/2 a mile, walk for 30 minutes, and sit and stand unlimited with ability to change positions as needed. In a January 2016 VA treatment record, the Veteran said that he quit his job a few months ago. He said he was resentful his employer accepted his resignation so readily even though he had commendations over the years and no reprimands. In a February 2017 peripheral nerves VA examination, the examiner determined that the Veteran's bilateral lower extremity radiculopathy condition did not impact his ability to work. In a February 2017 back VA examination, the Veteran said he had pain if he sat too long, with time interval varying. He also said that he had pain if he stood too long. It was determined that the Veteran's back condition did not impact his ability to work. At the November 2019 Board hearing, the Veteran testified that that he finished eighth grade and then got his GED. The Veteran said the last time he worked was in December 2010, where he was a "fire watch" at a construction site. In that position he was given a chair and sniffed the air and kept names of people going in and out. The Veteran said he was awarded Social Security in 2014 for his back and knees. He felt that he could not go back to work and stated that even driving to the Board hearing, he had to stop twice to get out and rest his back, and then his knees started to hurt; the drive was an hour long. He did the fire watch job for 2 1/2 months and then the job was completed. Prior to that, and following service, he was a truck driver and forklift driver. He worked in these jobs for over 20 years. In a February 2020 peripheral nerves VA examination, the Veteran complained of pain with prolonged sitting, standing, and even lying-in bed for too long. The examiner determined that the Veteran's bilateral lower extremity radiculopathy did not impact his ability to work. From June 1, 2010 to June 2, 2014 and from February 10, 2017 The Veteran contends that he is unemployable as a result of the combined effects of some of his service-connected disabilities. Specifically, in a June 2011 VA Form 21-8940, the Veteran said he was unable to work due to his knees and back. In a December 2016 VA Form 21-8940, the Veteran said that he was unable to work due to his degenerative disc disease, right ankle, and left ankle. From June 1, 2010 to June 2, 2014 and from February 10, 2017, the schedular requirements were not met, any award of TDIU would have to be on an extraschedular basis. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16(b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. Therefore, the Board will address whether the issue of TDIU from June 1, 2010 to June 2, 2014, and from February 10, 2017, should be referred to the Director, Compensation System. 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. 38 C.F.R. § 4.16(a). Factors to be considered are a Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As stated above, the Board notes that from June 2010 to June 2014, the Veteran had a combined service connection rating of 30 percent. Specifically, the Veteran was service connected for his back with a 20 percent disability rating, tinnitus at a 10 percent disability rating and hearing loss which was rated at a noncompensable disability rating. From February 10, 2017, the Veteran is service connected for a back condition, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; radiculopathy right lower extremity associated with back condition, rated as 10 percent disabling; radiculopathy left lower extremity associated with back condition, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable. The Veteran's combined rating is 40 percent. The Board finds that the schedular rating requirements for a TDIU were not met from June 1, 2010 to June 2, 2014 and from February 10, 2017. As the schedular requirements were not met, any award of TDIU would have to be on an extraschedular basis. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16(b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. Therefore, the Board will address whether the issue of TDIU from June 1, 2010 to June 2, 2014, and from February 10, 2017 should be referred to the Director, Compensation System. 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. 38 C.F.R. § 4.16(a). Factors to be considered are a Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As a preliminary matter the Board notes that the Veteran is not service connected for his knees or ankles. The Board may not consider the Veteran's non-service-connected disabilities in rendering a decision in determining whether the Veteran may secure substantially gainful employment. The Board has considered the Veteran's special training and previous work experience. See 38 C.F.R. §§ 4.16. The Veteran has completed 8th grade and then obtained his GED. The Board finds that the Veteran's education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical work, sorting, inspection work, and security monitoring. The Veteran has past work experience as a truck driver and a forklift driver. The Board finds that although the Veteran may no longer be able to perform his past work, his work history would not have prevented him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which do not require special training and can be learned on the job site. The Board acknowledges the Veteran's contention that no one would hire him due to his back issues. However, the June 2011 VA examiner noted that the Veteran remained independent for all of his daily activities. The Veteran drove his own personal vehicle and left home as he desired. The Veteran enjoyed the use of his home computer, watched TV, managed all of his own financial affairs, and self-administered his own medication. The Board also acknowledges that the Veteran was deemed disabled by SSA effective May 31, 2013. The Board initially notes that VA is not bound by SSA's determinations. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Board further observes that the legal criteria for entitlement to SSA disability benefits are similar to those for entitlement to a TDIU. Compare 20 C.F.R. § 416.905 with 38 C.F.R. § 4.16. However, the Veteran's SSA records reflect that the Veteran was found disabled for SSA purposes based only in part by the Veteran's service-connected disability, most of the disabilities were not service connected. These disabilities include the Veteran's right knee, high blood pressure, depression, cholesterol, and sleep issues. As the Veteran's nonservice-connected disabilities are not for consideration in determining entitlement to a TDIU, the Board finds the Veteran's receipt of SSA disability benefits to be less than persuasive in determining whether the Veteran is entitled to a TDIU. The Board acknowledges the Veteran's contention that the combination of the Veteran's service-connected disabilities renders him unable to secure substantial employment. The Board finds that although the Veteran may no longer be able to perform his past work, his work history would not have prevented him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which do not require special training and can be learned on the job site. The Board finds that the Veteran is essentially limited to work that does not require him to stand for a significant amount of time or to overly exert himself physically and instructions might need to be repeated from time to time. The Veteran's education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical work, sorting, inspection work, and security monitoring. With such an occupational profile, the Veteran would be able to perform this type of work, as these types of jobs do not involve exertional activities beyond the Veteran's residual functional capacity in view of his service-connected back, tinnitus, and hearing loss disabilities. The Board acknowledges that on-the-job training requires the Veteran to be able to hear an employer's instructions, but the Veteran's hearing loss is minimal, and examiners have indicated that the Veteran's hearing loss and tinnitus would not impact his ability to work. The Board finds that the back, tinnitus, and hearing loss disabilities taken together would not impede the Veteran's ability to seek substantial employment. To state it in a different way while the Veteran's hearing loss/tinnitus disability may add a level of inconvenience to the Veteran obtaining substantial employment, these impediments along with the Veteran's back disability that does not allow him to stand for long periods of time, lift heavy objects, or walk long distances, will not prevent him from securing substantial employment. In addition, the Board notes that there is no evidence that the Veteran's hearing impacted his daily life, or ability to work, but the Board made the assumption that there could be some communication issues, when making the determination that the Veteran's collective disabilities would not impact his ability to secure substantial employment. Thus, a referral of his claim for a TDIU to the Director, Compensation Service for consideration of such rating is not warranted from June 1, 2010 to June 2, 2014 and from February 10, 2017 From June 3, 2014, to February 9, 2017 As discussed above, from June 3, 2014 to February 9, 2017, the Veteran had an 80 percent combined disability rating. The disabilities included a back disability with a 20 percent disability rating, tinnitus with a 10 percent disability rating, radiculopathy right lower extremity associated with back condition with a 40 percent disability rating, radiculopathy left lower extremity associated with back condition with a 40 percent disability rating, and a noncompensable bilateral hearing disability. The Board finds that the schedular rating requirements for a TDIU were met. 38 C.F.R. § 4.16(a). Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, from June 3, 2014 to February 9, 2017, the Board finds that the evidence establishes that his service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation during the pendency of the claim. Initially, the Board notes the Veteran's representative argued the Veteran had marginal employment. Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Marginal employment generally shall be deemed to exist when a veteran's earned annual 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 established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Consideration must be given in all claims to the nature of the employment and the reason for termination. The Board notes that in the most recent December 2016 VA Form 21-8940, the Veteran said he last worked as a forklift driver from June 7, 1995 to December 20, 2010, where his highest earnings were $4400.00 per month. He worked 40 to 60 hours per week. Therefore, the Veteran's earnings for this time would not be within the poverty threshold. Additionally, the Veteran did not work this job part-time. The Board notes that at the November 2019 Board hearing, the Veteran testified that the last time he worked was in December 2010, where he was a fire watch at a construction site for 2 1/2 months. Prior to this, the Veteran said that he was a forklift driver. Finally, in January 2016 mental health note, the Veteran reported that "he quit his job a few months ago. He is resentful that they accepted his resignation readily even though he had had commendations over the years and no reprimands." The Veteran's statements seem conflicting regarding his work history. The Board notes that while there is no evidence of marginal employment, that even if there was evidence of marginal employment, only having marginal positions is not the same as being unable to secure and follow a substantially gainful occupation, whether part-time or full-time. There is no indication that the Veteran did not function adequately despite his any occupational impairments in any part-time marginal position. This strongly suggests he also would have functioned adequately in a part-time job that was not marginal or in a full-time job, had he attempted to secure and follow one. Nothing to the contrary exists. To the extent the Veteran argues he became unable to function adequately in a full-time job, there is no supporting evidence. As a preliminary matter the Board notes that the Veteran is not service connected for his knees, ankles, hips, depression, high blood pressure, wrists, or sleep apnea. The Board may not consider the Veteran's non-service-connected disabilities in rendering a decision in determining whether the Veteran has the ability to secure substantially gainful employment. As discussed in more detail above, the Board acknowledges that the Veteran was awarded SSA disability, but the Board is not bound by SSA's determinations. The Board acknowledges the Veteran's contention that the combination of all of his service-connected disabilities would prevent him from securing substantial employment and that no one would hire him due to his back issues. However, the most restrictive limitations regarding the Veteran's back and lower extremity radiculopathy included, that the Veteran was able to only lift 10 to 15 pounds, walk 1/2 a mile, walk for 30 minutes, and sit and stand unlimited with ability to change positions as needed. See March 2015 VA back examination. The Board acknowledges that these limitations are far more limiting than what were described in March 2011, where the SSA examiner stated that the Veteran should be able to sit for 8 hours a day during an 8-hour workday. He should be able to move about for 8 hours a day during an 8-hour workday. He should be able to lift and carry heavy objects and handle and manipulate small objects. The Veteran's ability to hear and speak was normal. The Board finds that these more restrictive limitations taken together would not prevent the Veteran from securing substantial employment. The Board acknowledges that in an October 2015 mental health note, 7 months after the back examination, the examiner stated that the Veteran reported, [After service] He moved in with his mother and sisters and went to work, but felt no desire to do anything. He worked until he needed knee replacement and back surgery in 2010. He withdrew from people and had no interest in doing things. He first received treatment about 10 years ago. The pain medicine eases up the pain so that he feels like doing things. He's still been somewhat socially withdrawn. The Board notes that in February 2015, the Veteran indicated during a VA examination that his hearing loss impacted his daily life and/or ability to work and said that others complain he could not hear; however, this did not really bother him. The Veteran said his tinnitus did not impact his daily life or ability to work, but rather it affected everyone else. The Board finds that the Veteran is essentially limited to work that does not require him to stand or walk for prolonged periods, or to overly exert himself physically, he cannot lift anything over 10 pounds, and he may need to have instructions repeated from time to time. The Veteran's education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical work, sorting, inspection work, and security monitoring. With such an occupational profile, the Veteran would be able to perform this type of work, as these types of jobs do not involve exertional activities beyond the Veteran's residual functional capacity in view of his service-connected back, radiculopathy, tinnitus, and hearing loss disabilities. The Board finds that the March 2015 VA examiner considered the Veteran's back and radiculopathy disabilities in rendering an opinion that the Veteran would be capable of securing substantial employment if he limited his activities by not lifting more than 10 to 15 pounds, walking less than 1/2 a mile, walking less than 30 minutes, but could sit and stand for an unlimited amount of time if he could change positions as needed. The Board finds that the additional functional loss or impairment of the Veteran's bilateral hearing disability and tinnitus in addition to the Veteran's back and radiculopathy disabilities would not prevent the Veteran from securing substantial employment. The Veteran may need instructions repeated, but his hearing loss and tinnitus disabilities would not prevent him from securing substantial employment. The Board also acknowledges that the Veteran's nonservice-connected conditions, to include his knees, ankles, hips, depression, high blood pressure, wrists, and sleep apnea disabilities, may further limit him such that he cannot secure or follow a substantially gainful occupation. However, the nonservice-connected disabilities are not for consideration. The Board does not doubt that the Veteran's service-connected disabilities limit his occupational functioning. However, as discussed above, the Veteran retained the functional capacity to perform the duties required of any number of jobs that would allow an environment that does not inherently require him to lift more than 10-15 pounds, engage in prolonged walking or standing, and may require a supervisor or co-worker to repeat instructions such as clerical work, sorting, inspection work, and security monitoring. The Board has considered the Veteran's collective service-connected disabilities and the Board finds that the Veteran's education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical work, sorting, inspection work, and security monitoring. The Veteran has past work experience as a truck driver and a forklift driver. The Board finds that although the Veteran may no longer be able to perform his past work, his work history would not have prevented him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which do not require special training and can be learned on the job site. The Board finds that even considering the Veteran's increased limitations the Veteran would not be prevented from securing a job within this occupational job profile due to any or all of his service-connected disabilities. The Board has carefully considered the Veteran's statements regarding the effects of his disability on his employability. Although he experiences pain, repeated VA examinations have indicated that he is not precluded from obtaining or maintaining substantially gainful employment. Moreover, the Veteran's bilateral hearing loss and tinnitus, in addition to the Veteran's back and radiculopathy have not precluded the Veteran from securing substantial employment. The Board has assigned these examination reports great probative value as they were based on an examination of the Veteran and a review of the pertinent evidence of record. In summary, the record does not demonstrate that the Veteran was by virtue of his service-connected disabilities, rendered incapable of participating in any substantially gainful employment. Accordingly, TDIU on a schedular basis from June 3, 2014 to February 9, 2017, is not warranted. Further, referral of his claim to the Director, Compensation Service for consideration of such rating from June 1, 2010 to June 2, 2014, and from February 10, 2017, is not warranted and a TDIU rating is not warranted. Therefore, TDIU for all periods on appeal is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.