Citation Nr: 21005508 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-12 238 DATE: February 1, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 31, 2015 is denied. FINDING OF FACT Prior to August 31, 2015, the Veteran was not precluded from securing or following substantially gainful employment due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to August 31, 2015 on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 until January 1974. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in December 2015, and a copy of the transcript is of record. The TDIU claim was referred to the RO in an October 2017 BVA decision, as the Board found the Veteran’s statement in the June 2017 Form 9, claiming that he had been totally disabled since 2004, sufficient to raise a claim of TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009). As the 2017 Form 9 was appealing a rating decision that granted service connection with assignment of a disability rating retroactive to October 2004, the period on appeal potentially begins October 2004. Entitlement to TDIU was partially granted in a May 2019 Board decision. In that opinion, the Veteran was granted entitlement to TDIU beginning August 2015 on a schedular basis. Entitlement to TDIU prior to August 2015 was remanded in order to refer extraschedular consideration to the VA’s Director of Compensation and Pension Service (Director). 38 C.F.R. § 4.16(b). The Director’s memorandum dated October 2020 is of record. The Board finds the RO substantially complied with the remand instructions and an additional remand to comply with the remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the October 2020 Supplemental Statement of the Case (SSOC) and are not repeated here in full. The Veteran has not raised any specific duty to notify or duty to assist issues regarding this claim. 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). 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. See 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability, that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. See 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. See 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to TDIU may be submitted to the Director for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. See 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). As previously noted, the Board remanded the case to the Director to evaluate whether extraschedular consideration was warranted. In an October 2020 Advisory Opinion, the Director determined that “the overall evidence does not support the contention that the service-connected disabilities support an exceptional situation that prevented gainful employment prior to August 31, 2015.” Although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. Wages v. McDonald, 27 Vet. App. 233 (2015). Moreover, the fact the Board previously determined such referral was warranted does not mean the claim will succeed on the merits, because the standard for referral is necessarily "based on a[n] evidentiary threshold that is lower than that for the decision to award an extraschedular rating." Ray v. Wilkie, 31 Vet. App.58, 62 (2019) (holding that the Board is not bound to grant an extraschedular benefit even if the Board itself previously determined that referral to the Director was appropriate); see also Anderson v. Shinseki, 22Vet. App.423, 427-429 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board even if favorable to the Veteran). The Board previously determined that the question of unemployability had been raised by the Veteran's statements, which was sufficient to trigger his procedural right to referral to the Director for extraschedular consideration, but this did not involve a weighing of the favorable and unfavorable evidence to make a final determination on entitlement to extraschedular TDIU. Therefore, the Board has made its own determination whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. §4.16(b). Prior to August 31, 2015, the Veteran was service connected for gastroesophageal reflux disease (GERD) evaluated at 0 percent effective October 5, 2004 and 10 percent from April 18, 2005; lumbar spine degenerative disc disease evaluated at 20 percent effective October 5, 2004 and 40 percent effective August 7, 2015; right lower extremity neuropathy evaluated at 20 percent effective January 15, 2005; ulceration of larynx and vocal cords evaluated at 10 percent effective July 19, 2006 and ulceration of the esophagus evaluated at 0 percent effective from October 25, 2011. The Veteran’s combined rating was 20 percent from October 5, 2004; 30 percent from April 18, 2005; 40 percent from July 19, 2006; 50 percent from January 15, 2015; and 60 percent from August 7, 2015. As of August 31, 2015, his combined disability rating was 70 percent and he was granted TDIU. Prior to August 31, 2015, the Veteran did not meet the criteria for schedular consideration. Once the issue of a TDIU has been raised in the context of an appeal, it is not bifurcated by the grant of TDIU for a portion of the applicable period on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of TDIU became part of the underlying appeal for higher initial ratings for the lumbar spine and GERD disabilities, and those ratings were retroactive to October 2004. On his June 2017 Form 9 appealing those ratings, the Veteran claimed that he had been totally disabled since 2004. That is the statement that the Board found sufficient to raise a claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, again, the appeal period for TDIU potentially extends to 2004. The Veteran filed an Application for Increased Compensation Based on Unemployability in November 2017 and attributed his lack of gainful employment as due to his service-connected neuropathy, degenerative disc disease and GERD. Specifically, that he could no longer do the tasks required for his previous employment, which was as the owner and an active employee of a pallet making company since approximately 1984. Regarding education, the Veteran has a high school diploma and one year of college. The majority of his post-service career was as a self-employed pallet maker until June 2005, when he last worked. See May 2006 Social Security Administration (SSA) Functional Assessment. Prior to filing the application, in a June 2017 Notice of Disagreement, he also indicated that his disability affected his full-time employment as a pallet maker, stating that he has been totally disabled since 2004. The Veteran discussed his employability at several medical appointments, for treatment of service connected and nonservice-connected conditions. During treatment for a non-service-connected disability in 2002, the provider noted the Veteran’s pain in his arms and legs but that he worked on a regular basis without difficulty. See December 2002 Paris Henry County Clinic Private Treatment Record. At a VA primary care medical appointment in July 2005, the provider noted that the Veteran walked frequently and had no limitations on his ability to change and control body position. This note stated that the Veteran did not have any new limitations on daily activities but did not clarify whether the Veteran had any previous limitations. The VA treatment records for the rest of 2005 and 2006 primarily focus on nonservice-connected conditions such as his hearing loss, pacemaker/congestive heart failure, COPD, and sleep apnea. Although the prior surgical procedures for GERD were mentioned, as well as some reports of chronic back pain, there were no indications in the 2005-2006 VA treatment records of any physical limitations because of service-connected conditions. In June 2006, he was awarded SSA disability benefits effective June 2005, primarily based on implantation of a pacemaker and obesity, which are not service-connected disabilities. In the Veteran’s May 2006 Functional Assessment, the SSA examiner determined that the Veteran could occasionally lift or carry 20 pounds; frequently lift or carry 10 pounds; stand for a total of at least 2 hours per 8-hour workday; sit about 6 hours in an 8 hour workday; and was unlimited in pushing or pulling. The Veteran could only occasionally climb stairs, stoop, kneel, crouch or crawl. In the daily requirements of employment, he built, loaded and delivered pallets, as well as dealt with customers. The examiner stated, “Although the claimant indicated to perform the supervisory aspects of the job, [the Veteran’s] work is best described by the numerous physical activities performed. The [Veteran’s] residual functional capacity is for sedentary work with limitations. The [Veteran] would not be able to perform this job in the manual or supervisory position with this limited residual functional capacity.” VA outpatient records for 2006-2007 continued to show treatment primarily for nonservice-connected conditions. There was some mention of GERD and throat issues, but there were no indications of any physical limitations because of service-connected conditions. He was referred for physical therapy in 2007, in part because of back/right leg pain, and he complained of pain that was worse with standing or excessive exertion. A December 2007 orthopedic note indicated he was able to stand erect, without any misalignment, but had limited motion. At a VA Hearing in December 2007, the Veteran nor his representative made any indication of unemployment due to service-connected disabilities. VA records show in 2008 the Veteran was recommended to the MOVE program to lose weight. While it was not recommended he engage in physical activity, and it was noted he had shortness of breath due to heart issues, there were no indications of any physical limitations with light to moderate exercise because of service-connected conditions. In a February 2009 VA examination for degenerative disc disease, the examiner noted that there were multiple effects on the Veteran’s usual daily activities: mild impact on shopping, traveling, and bathing; moderate impact on chores; and, a severe impact on exercise, sports, and recreation. Additionally, there was no impact on the Veteran’s ability to dress, groom, or feed himself, or use the toilet. The Veteran asserted that he had retired due to medical problems, specifically his low back and hip. VA outpatient records for 2010-2012 continued to show treatment primarily for nonservice-connected conditions, mostly his heart condition, but he was treated for GERD. In November 2011, his wife called to report he was having a flare-up of back pain. It does not appear that he came in for any treatment, though. He had another flare of back pain in December 2012 and sought treatment at the emergency room. In 2013, he had complaints of increased back pain, and it was recommended he use a walker by a physical therapist (more on this below). In 2014, the Veteran was treated at a private pain clinic for his back pain and right lower extremity neuropathy. He was reliant on a cane at these appointments. In February 2014, he reported that his pain was made worse by lying on his side or back, sitting, changing from sitting to standing, bending or stooping, walking, using his arms, and lifting or carrying small or heavy loads. His pain interfered with his sleep, mood, relationships, grooming, household chores, walking, exercise and employment. In March 2014, his pain was worsened by lying on his side or back and walking, and interfered with walking, exercise and employment. His pain was relieved by stretching. By May 2014, the Veteran’s pain was worsened by walking and interfered with exercise. He rated his pain as 9 out of 10. In August, the Veteran described the constant stabbing, aching pain as 8 out of 10 on a pain scale, only mildly relieved from medication. The Veteran was using a cane as well as a walker. A note states that the pain did not interfere with anything, however that is contrary to the rest of the visit summary. As of June 2015, the Veteran’s pain still interfered with his mood, sleep, relationships, and walking. It was noted that, even with his current treatment, the Veteran still could not perform many activities. In August 2015, the VA examiner noted during a spine examination that the Veteran could not walk or stand for long periods of time, as the Veteran has to use a walker, which he could only use for a short time. He could not lift or carry anything of significant weight due to his dependence on a walker. He was also determined to be a fall risk due to his instability. The Veteran needed help with toileting, showering and transferring from bed, as well as dressing. It was as a result of this examination that the Veteran’s disability evaluation for his degenerative disc disease was increased to 40 percent. The Veteran also provided sworn testimony at the December 2015 Board Hearing that he was no longer able to do the activities of daily living, including church activities. He could sit for about 15 minutes before needing to stand. The Veteran stated that he started using a cane in 2010 or 2011. He also testified that his back pain began to limit his daily functions as early as 2002. His GERD and other esophageal disabilities had worsened since surgery in 2005. The polyps on his vocal cords tended to return shortly after removal. At the time of the hearing, the Veteran could keep food down for only 5 or 10 minutes before he aspirated. His spouse was acting as his full-time caretaker, helping him in the bathroom, dressing, washing, and bathing As noted above, SSA awarded disability benefits effective June 2005, but based on disabilities that are not service-connected. Therefore, this award of benefits has no probative value in favor of the TDIU claim. The Board will consider the Veteran’s functional assessment findings of limitations done by SSA as they pertained to his service-connected conditions. SSA found that the Veteran was limited to sedentary employment with physical limitations, but the determination did not address what constitutes sedentary employment. Per Dorland’s Illustrated Medical Dictionary, 1687 (32nd ed. 2012), “sedentary” is defined as “sitting habitually; of inactive habits;” “Pertaining to a sitting posture.” The Court has 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. Withers v. Wilkie, 30 Vet. App. 139 (2018). Here, the record shows that the Veteran has a high school diploma, worked as a self-employed pallet maker for approximately 21 years and was last employed in 2005. He has had no additional training after his last employment. The Veteran described his employment in his SSA application as building and delivering pallets, supervising 3-5 employees, dealing with customers, and all other aspects of running a business. He indicated this job involved a lot of walking, standing, climbing, and other physical activities, as well as lots of lifting of parts up to 50 pounds. SSA found that the Veteran’s residual functional capacity included the ability to lift or carry 20 pounds occasionally and 10 pounds frequently. He could stand for 2 hours and sit about 6 hours in an 8-hour workday. He could only occasionally climb stairs, stoop, kneel, crouch or crawl. Although the Veteran reports he stopped working in 2005, this does not appear to be entirely true according to his VA treatment records. There are numerous references in the VA records that his occupation was carpenter. In September 2008, it was noted that he “Works in his business of pallet company with his wife.” In December 2011, August 2012, February 2013, October 2013, and June 2014, it was noted that he owned a pallet company. In July 2015, it was noted that he “still works in his wood pallet business,” although he was limited by leg pain and his weight. It was not until January 2016 that his VA records began to consistently refer to him as “retired.” Perhaps he reduced his hours or did less work in the physical aspects of his job, but owning a business would still have provided him income. There is no indication in the record as to his business earnings from 2004 to 2015, so no allegation his income was marginal in nature. For purposes of this decision, the Board will assume the Veteran was either unemployed or working reduced hours prior to August 2015, although, again, this is not entirely clear based on the inconsistencies between his allegations of being unable to work yet his VA treatment records showing he continued to own the business. Regardless, the Board finds that prior to August 2015, the medical evidence did not show the Veteran’s service-connected conditions alone precluded him from obtaining or maintaining gainful employment. While he may have reduced his hours or reduced his participation in the physical aspects of the business, the Board agrees with SSA that the Veteran remained capable of sedentary employment. The greater weight of the evidence is against finding that the Veteran’s service-connected disabilities alone prevented him from performing the mental and physical tasks required of sedentary employment. In Withers, the Court indicated that if VA finds that a veteran is able to perform "sedentary" work to deny a TDIU claim, the Board must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. The Board defines such employment as work in an office-like setting, that is primarily performed in the sitting posture, working on the computer, using analytical skills, and completing administrative tasks. Given the physical aspects of pallet making, the Board acknowledges that the Veteran would not necessarily have been able to keep his prior job. However, that it not the pertinent question in a TDIU claim. Although the Veteran’s work of building pallets was clearly physical in nature, it cannot be overlooked that he actually owned and ran the business, including hiring, firing, and supervising 3-5 employees, which means he had management skills. Running a business also means he had experience with financial aspects such as budgeting and payroll. He also indicated he had to deal with the customers, which means he has communication and customer service experience. He has no service-connected mental health disabilities, so there is no interference with any of the mental abilities needed to complete managerial, supervisory, financial, or customer service tasks. While the Veteran reported to SSA his difficulty hearing interfered with some of these tasks, it must be noted, first, that he is not service-connected for hearing loss, and, second, that service connection for tinnitus was not in effect until August 31, 2015, so any interference that condition had prior to that date cannot be considered. See also December 2005 VA records noting severe hearing problems with a cochlear implant. As sedentary employment would encompass sitting for much of the day, it must be determined whether his service-connected conditions would have prevented that aspect of a sedentary position. In looking at the medical evidence, the Board determines they would not have. Even SSA determined he remained capable of sitting for 6 hours out of an 8-hour workday, and it is common sense that in any type of office-setting job an individual can stand intermittently (even if just at his desk) and even walk occasionally throughout the day (even if just within the office). His service-connected disabilities certainly would impact his ability to sit for a prolonged period, but the question is whether they were severe enough to prevent him from doing so. The Board concludes they were not. Considering this Veteran’s particular work experience, including managing and running a business for two decades, and the nature of his service-connected conditions, he remained capable of sedentary work prior to February 2014. See functional limitations found by SSA and the 2009 VA examination report. At a pain clinic appointment in February 2014, the Veteran was reliant on a cane to ambulate, and a June 2014 VA cardiology note indicated that he was using a walker all the time. However, it does not appear from the medical evidence his use of a walker is solely because of his service-connected conditions. A January 2013 VA physical therapy note indicates that despite his complaints of back pain, he was ambulating without assistive devices and with no gait abnormalities. However, the therapist noted he had difficulty going from sitting to standing due to his morbid obesity. She gave him gait training and recommended a rolling walker. He was encouraged to increase mobility and walking. The fact he was encouraged to participate in more physical activity at that time clearly shows there were no restrictions on his physical activity despite his complaints of back pain. The only mention of any functional limitations were due to his obesity, which is not service-connected. Therefore, there is no persuasive evidence his use of assistive devices prior to August 2015 was because of his service-connected conditions. While the Board acknowledges the adverse impact that the combination of the Veteran's disabilities have on potential employment, these limitations are already recognized by the disability ratings in effect, and do not equate to an inability to obtain or maintain gainful employment. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. For all the reasons discussed above, the Board concludes that there is no persuasive evidence suggesting that the Veteran was mentally or physically incapable of performing gainful work due solely to his service-connected disabilities. Accordingly, his claim for entitlement to TDIU prior to August 31, 2015 is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Parker N. Reynolds, 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.