Citation Nr: 21005752 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 07-04 793 DATE: February 2, 2021 ORDER A total disability evaluation based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disorders do not make him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria to establish entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1985 to September 1985. In June 2008, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is in the claims file. In July 2019, the Board of Veterans’ Appeals (Board) remanded this matter to the Regional Office (RO) to obtain an opinion from the Director of the Compensation Service regarding extra-schedular consideration of entitlement to a TDIU. The requested opinion was obtained in June 2020. Review of the completed development reveals that substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (a). A finding of total disability is appropriate “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 (a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16 (a). In calculating whether a veteran meets the schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. Id. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. Id. Effective January 17, 2013, the Veteran’s combined service-connected disability rating was 40 percent. The Veteran’s service-connected disabilities include a 20 percent rating for a lumbar strain with osteoarthritis; two separate 10 percent ratings for bilateral lower extremity radiculopathy; and a noncompensable (zero percent) rating for a lower back scar. Under 38 C.F.R. § 4.16 (a), the Veteran does not meet the schedular requirement for TDIU. Where, as here, a veteran does not meet the schedular requirements for consideration of entitlement to a TDIU, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities have rendered the veteran unable to secure and follow substantially gainful employment. See 38 C.F.R. §§ 3.340 (a), 3.341(a), 4.16(b). As noted in the July 2019 remand, the Board found that referral for extraschedular consideration was warranted based on the Veteran’s work history, level of education, and physical impairment from his service-connected lower back disorder(s). The law provides that a veteran’s advancing age and non-service-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, 4 Vet. App. at 363. Finally, the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA fully must consider “the effect of combinations of disability” under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The Veteran contends he has been unable to work since October 2006 due to his service-connected lower back disorder and lower extremity radiculopathy. The claims file reports that the Veteran has a high school education and has primarily worked in jobs that require manual labor. He most recently worked as a refuse truck driver and previously worked as a stocker and in industrial and construction positions. The report of the October 2006 VA lower back examination indicated the Veteran’s lower back condition did not impact his ability to perform activities of daily living (“ADLs”). The Veteran reported experiencing pain during prolonged sitting, when twisting his torso, and when exiting his work vehicle, but stated that he “worked through the pain.” In January 2007, the Veteran submitted three (3) Medical Examination Reports in connection with his commercial driver fitness determination(s). In a March 2005 fitness report, the Veteran reported “chronic low back pain” in his medical history. In a September 2007 document entitled “Disability Report – Adult, (Form SSA-3368), the Veteran reported that asthma, headaches, chest pain, high blood pressure, and shortness of breath limited his ability to work, but he did not report any occupational impairment due to lower back pain or a back condition. He stated that he completed high school, could read and write English, and trained as an electrician in 1985. He indicated that, in his most recent waste management job, he used technical knowledge and skills and was required to write, complete reports and perform other similar duties. In an April 2008 document entitled “Physician’s Statement of Disability,” a doctor indicated the Veteran’s occupational asthma restricted his ability to work around toxic fumes or other airborne irritants. However, the doctor noted the Veteran had no other physical restrictions that could limit the Veteran’s ability to maintain employment. An April 2008 vocational rehabilitation report stated the Veteran’s reading and math scores reflected “significant vocational weaknesses.” The report further stated the Veteran’s skills are indicative of an individual who would only be qualified for manual and physical labor. The author of the report (W.S., M.D.) indicated that the prognosis for successful vocational rehabilitation to some lighter, alternative work or job was poor without significant improvement in the Veteran’s physical and psychological conditions. At a June 2008 Board hearing, the Veteran denied that he stopped working specifically because of his lower back condition. A September 2008 Social Security Administration (SSA) determination found that the Veteran was unable to perform any relevant past work, including manual labor or sedentary work. The 2008 SSA determination further noted the Veteran had a substantial loss of mental and physical ability to meet the demands of basic work activities, and there were not a sufficient number of jobs in the national economy which the Veteran was capable of performing. The Veteran’s impairments were noted to be moderate restriction on ADLs, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and no episodes of decompensation. The 2008 SSA determination has limited probative value because it found that the Veteran was unemployable due to his non-service-connected psychiatric and asthma conditions, without reference to his service-connected lower back condition. As noted above, the Board is prohibited from considering the Veteran’s non service-connected disabilities when awarding a TDIU. At the June 2009 VA lower back examination, the Veteran reported he had been unemployed for the past two and a half years because of his non-service-connected lung condition. He reported his lower back condition prevented him from activities involving prolonged standing, walking, or heavy lifting. He denied using any assistive devices. At the January 2013 VA examination, the Veteran reported he had received Social Security Disability Insurance (SSDI) since 2006 due to lung damage. He stated his lower back condition would prevent him from performing his previous job duties, which included not only driving, but climbing, cleaning and opening gates. He stated he could no longer tolerate any type of work because he could not sit or stand for prolonged periods. An October 2013 VA addendum opinion indicated the Veteran would be precluded from physical labor because of his back condition. However, the examiner opined that the Veteran would be able to tolerate an occupation which did not require lifting greater than 40 pounds on a regular basis, pushing/pulling greater than 60 pounds, frequent bending or flexing, or climbing. The report of the February 2016 VA examination indicated the Veteran was unable to continue his former line of work as a truck driver. The examiner stated the Veteran’s service-connected lower back disorder precluded him from any heavy lifting, prolonged sitting and climbing. However, the examiner opined that the Veteran could tolerate sedentary employment if given the opportunity to change positions or take short breaks as needed to alleviate back symptoms. The June 2020 memorandum by the Director of Compensation Services (Director) indicated that extraschedular consideration was not warranted. The Director noted the Veteran’s employment history, education, and age, and opined that the Veteran is not presently precluded from obtaining additional education and/or additional skillsets that would allow him to participate in a substantially gainful occupation. In rendering the opinion, the Director relied on VA examination reports, VA medical records, and SSA records. The preponderance of the evidence is against finding that the Veteran is unable to secure or maintain substantially gainful employment because of his lower back conditions. The record indicates that the Veteran completed high school, received some technical training, and is capable of sedentary work if given the opportunity to take breaks. The Veteran stopped working in October 2006 because of a non-service-connected lung condition, and was later awarded SSDI based on his lung condition and a psychiatric disorder. As indicated above, the 2008 SSA finding that the Veteran is unemployable has significantly diminished probative value because that determination was based primarily on impairments caused by non-service-connected disabilities. The Board has considered the Veteran’s and his wife’s lay statements that his lower back pain prevents him from working. However, the Veteran’s reports of back pain do not rise to a level that places him in a different position than other veterans with the same disability rating. Ultimately, the evidence does not show that, standing alone, the Veteran’s lower back condition renders him unemployable. The claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.