Citation Nr: A21019698 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 191031-41255 DATE: December 10, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for a lumbar spine disability is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran's service-connected disabilities do not prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to June 1977. On August 23, 2017, the President signed into law the Veteran's Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA) decision on their claim to seek review. A January 2019 rating decision was issued under the legacy system and the Veteran submitted a timely notice of disagreement. In September 2019, the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC). The Veteran opted the claim into the modernized review system by submitting an October 2019 VA Form 10182, Decision Review Request, electing the Direct Review docket. The Board of Veterans' Appeals (Board) denied entitlement to an initial disability rating greater than 20 percent for a lumbar disability and TDIU in a July 2020 Board decision. The Veteran appealed the July 2020 decision to the United States Court of Appeals for Veterans Claims (CAVC). In an Order dated June 2021, CAVC granted a Joint Motion for Remand (JMR) of the parties and remanded the case to the Board. Jurisdiction has been returned to the Board. Entitlement to TDIU is denied. The Veteran contends that the lumbar spine disability has prevented him from working and is extremely limiting on his activities of daily living. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. While the term substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent. Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that takes the claimant's case outside the norm of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran's current service-connected disabilities include lumbar spine disability, rated 20 percent; radiculopathy in the right lower extremity associated with the lumbar spine disability, rated 20 percent; radiculopathy in the left lower extremity associated with the lumbar spine disability, rated 20 percent; headaches, rated 10 percent; vertigo associated with headaches, rated 10 percent; bilateral hearing loss, rated noncompensable; residuals of lipoma excision from the right posterior flank, rated noncompensable; and lumbar and left hip scars associated with the lumbar back disability, each rated noncompensable. The Veteran's combined service-connected disability rating is currently 60 percent. The Veteran does not qualify for schedular TDIU. Therefore, the question before the Board is whether a remand for referral for extraschedular consideration for TDIU is warranted. See 38 C.F.R. § 4.16 (b). The initial extraschedular referral decision under § 4.16(b) should address 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). Service personnel records indicate that the Veteran requested early separation from the military in March 1977, which was approved. A March 1977 request for early separation drafted by the Veteran indicates that he obtained a Bachelor of Science degree in business administration with a major in accounting and planned to pursue a career in accounting. August 2018 VA treatment records indicate that the Veteran was engaging in physical therapy and occupational therapy after his back surgery. A November 2016 VA examiner's report for hearing loss and tinnitus indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life and his ability to work because he had a hard time hearing female voices. The same examiner's report found that the Veteran's tinnitus did not impact his ability to work. November 2016 VA examiner's reports for skin and headache disabilities both found that those disabilities did not impact the Veteran's ability to work. January 2016 VA examiner's reports for an ear disability and a scar disability also indicated that those disabilities did not impact the Veteran's ability to work. During the January 2019 VA examination for the Veteran's lumbar spine disability, the Veteran reported that after service he worked as a residential contractor and that his low back pain continued. He reported that his low back pain was a constant dull pain aggravated by prolonged bending and that he could not lift anything over 25 lbs. The January 2019 VA examiner's report noted that the Veteran had no functional loss and used no assistive devices. The January 2019 VA examiner's report also determined that the Veteran's back disability did not impact his ability to work. In evaluating whether extraschedular TDIU is appropriate the Board acknowledges the Veteran's April 2019 statement endorsing unemployability attributable to his lumbar back disability. The statement explained that the lumbar spine disability prevented the Veteran from working and was extremely limiting on his activities of daily life. The Veteran further contended during his January 2019 VA examination for his lumbar spine that he worked as a residential contractor after service and that currently he could not lift more than 25 pounds. To the contrary, multiple VA examination reports affiliated with the claims file between November 2016 and January 2019, including the January 2019 VA examiner's report related to the Veteran's lumbar spine disability, determined that the Veteran's service-connected disabilities did not affect his ability to work. The only exception was the November 2016 VA examiner's report related to the Veteran's noncompensable hearing loss, which found the Veteran's hearing loss affected his daily life activities and ability to work because the Veteran had difficulty hearing female voices. The Board finds the multiple VA examiner's reports indicating that the Veteran's functional impact of his service-connected disabilities do not impact his ability to work to be highly probative. These reports were formulated after an in-person examination of the Veteran and review of the Veteran's claims file and based on the examiner's superior medical knowledge. The Board affords little probative weight to the November 2016 VA examiner's report related to the Veteran's hearing loss, because the Board does not find that the Veteran's difficulty with hearing female voices would have such a great impact on his employment as a contractor to warrant extraschedular TDIU. The record is otherwise scarce for references to the Veteran's employment history. The Veteran obtained a Bachelor of Science degree in business administration with a major in accounting while in the service. Military personnel record related to the Veteran's early discharge from service indicate that the Veteran intended to pursue a career in accounting. The Veteran's claim's file does not indicate whether the Veteran actually worked in the accounting field though. The only reference to the Veteran's employment history was in the January 2019 VA examiner's report which indicated that the Veteran was a residential contractor. The Veteran's claims file does not indicate whether the Veteran currently works. Moreover, the Board also notes that a schedular rating itself is recognition that a claimant's industrial capacity is impaired to some degree. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. 3 8 C.F.R. § 4.1; Van Hoose, supra. Although the Veteran's service-connected disabilities may have hindered some aspects of employment, a combined compensable schedular rating of less than 100 percent implies a degree of interference with employment that would not preclude a particular claimant from securing and following all substantially gainful employment. In light of the Court's guidance provided in Ray v. Wilkie, the Board finds that the Veteran can secure and follow a substantially gainful occupation. Having considered the medical and lay evidence of record, including statements describing limited motion, difficulty lifting anything greater than 25 lbs., hearing female voices precluded, VA examination reports, the Veteran's degree in business administration with a major in accounting, and work history as a contractor for over 20 years, the Board finds that the Veteran is fully capable of performing seated work or light duty work (i.e. work at a VA regional office, in sales, or a clerical environment) which requires little to no physically challenging duties such as that permits him to work in a seated position, take breaks to stand and walk, and does not require high level technical skills. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appeal assignment of TDIU due to service-connected disabilities. 38U.S.C. §1155; 38C.F.R. §§3.340, 3.341, 4.16. Because the record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the Board finds no reason to refer the Veteran's claim to the Director of VA Compensation and Pension Service for extraschedular TDIU consideration. The claim for entitlement to TDIU must be denied. REASONS FOR REMAND The June 2021 JMR found the Board failed to ensure adequate efforts were made to obtain relevant private medical records; relied on an inadequate January 2019 VA examination and September 2019 VA addendum opinion to determine whether entitlement an initial rating in excess of 20 percent was warranted. The Board finds that the JMR is not consistent with the law and regulations pertaining to the AMA in regards to the private treatment records; however, the Veteran will be provided yet another opportunity to submit a release so that VA may obtain these records for him or he is able to submit the records himself if he wishes to do so. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a release in order to obtain private treatment providers which have treated him during the pendency of his claim. If he submits the release, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Provide a retrospective opinion as to the severity of the Veteran's back disability at the time of the January 2019 VA examination. Specifically, the examiner is asked to: a) Conduct a telephone or virtual interview with the Veteran to elicit the history of his back disability during the time frame of the January 2019 VA examination. In doing so, obtain information as to the frequency, duration, characteristics, severity, or functional loss with any repetitive us or during any flare-ups. (If the examiner determines that another in-person interview/examination is needed in lieu of a telephone or virtual interview, one should be afforded to the Veteran). b) Then, render a report of the medical history elicited and associate the report with the claims file. c) Estimate the range of motion, in terms of degrees, that the Veteran would have experienced in his back in January 2019 with (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight bearing, (5) repetitive use, and (6) flare-ups. In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.