Citation Nr: 21007148 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 11-13 623 DATE: February 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected lumbar spine disability, bilateral lumbar radiculopathy, and scar do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 to November 1966. This matter is on appeal from a February 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in June 2015 and August 2017 when it was remanded for further development. In November 2017, the Board denied the Veteran’s claim for a TDIU. The Veteran appealed the November 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the Court granted a Joint Motion for Remand (JMR) that vacated the Board’s decision and remanded it for further action. In April 2019, the Board remanded this matter for additional development. TDIU The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. 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. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). As explained in the prior remand, the Veteran has not met the schedular criteria for a TDIU during the entire appeal period. The Veteran is currently assigned the following non-total evaluations: right side radiculopathy rated at 10 percent from October 29, 2009 and from 20 percent from June 19, 2014; left side radiculopathy at 10 percent from June 19, 2014; degenerative disc disease of the lumbar spine status post spinal fusion at 20 percent from October 29, 2009 to August 30, 2016 and from October 1, 2016; and, scars associated with degenerative disc disease of the lumbar spine status post spinal fusion rated as noncompensable from August 30, 2016. The Veteran’s combined disability rating was 30 percent from October 29, 2009, and 50 percent from June 19, 2014, to August 30, 2016, and from October 1, 2016. Although the percentage requirements of section 4.16(a) are not met, if the evidence establishes that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred for extraschedular consideration. 38 C.F.R. § 4.16(b). The central inquiry in a claim for TDIU is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The established policy of VA reflects that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual Veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (1) the Veteran’s history, education, skill and training, (2) the Veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (3) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Moreover, age is not a factor to be considered in evaluating the Veteran’s unemployability. 38 C.F.R. § 4.19. If the Board determines that the Veteran’s unemployability was a result of his age and non-service-connected disabilities, the Board is still required to decide, without regard to the non-service-connected disabilities or age, whether the Veteran’s service-connected disabilities are sufficiently incapacitating as to render him unemployable. Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran was provided with a VA examination in February 2010. The Veteran reported severe pain lasting 24 hours a day. He reported that “7 days out of the month he is basically on bed rest.” The clinician noted that “[o]riginally, this patient states that his pain in his back was a 10 out of 10 all the time, but he did not seem to be in any discomfort when he was in the exam room, so I did try to explain to him what a 10 out of 10 meant.” The Veteran then stated that he was a 7 to 10 out of 10 and that it is 10 out of 10 during a flare-up, which occurs every day and lasts 2 to 3 hours, with precipitating factors such as standing and walking. He reported that he has to rest during a flare-up. The examiner noted features of stiffness, fatigue, spasms, and weakness with decreased motion and numbness in the right side of the leg. The examiner noted the Veteran’s daily activities include grooming, bathing, toileting, dressing, and driving a car. The Veteran stated that outside of that, “he does not do any work” and “basically stays around the house.” The clinician noted that the Veteran undressed “without any problem whatsoever” and that he “did spill some coins on the floor and while he was in the sitting position, bent over to pick up the coins without any problem whatsoever.” The clinician noted that the Veteran was able to walk on his heels and toes in the examination room. He refused to stand on the right leg but stood on the left leg without any problem and could hop on that leg. He undressed without any problem and put on his pants standing in the upright position. The clinician noted that “he also had told me originally that he could not raise his arms above the level of his shoulders, however, he had 3 pull-over shirts on today, 2 of which he put on without any problem in the exam room, raising his arms just above the level of the shoulders when he put them on.” He noted that “when he left the exam room, I did watch him walk down the hallway and he had a relatively moderately brisk pace” and he “did not walk with a limp and he did not seem to have any trouble walking for a distance of about 80 feet” and his “gait was normal at that time.” A straight leg raise was positive on the right and negative on the left. The clinician noted that “this patient when asked to get up on the exam table sat down on the exam table and laid down in a normal fashion” and he did “not seem to have any pain in his back when he laid down or when he got up.” In April 2010, the examiner provided an addendum opinion which noted numbness and tingling down the right leg. In October 2010, VA received a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in which the Veteran reported working as a painter from March 1969 to May 1983 and stated he was no longer able to sand blast, climb, or lift. He also noted that he had obtained a GED. A December 2010 VA examination report noted that the Veteran reported last working in a chemical plant as a painter in 1983. He reported that pain is usually precipitated by doing work around the house, such as mopping the floor or lifting. January 2011 VA treatment records reflect that an examiner noted that “his back condition [does not] make him unemployable” because although “he has a mild scoliosis and has a forward posture when he walks, this examiner opines that the severity of his current back problems [does not] preclude him from obtaining and holding gainful employment based on his work experience as a painter.” February 2014 private treatment records from an emergency department note that the Veteran was seen for lower extremity pain and back pain in the lumbar area with sciatica and was instructed to return to the emergency department as needed. April 2014 private treatment records note hypertrophy, mild degenerative spondylolisthesis, and moderate-to-severe spinal stenosis. In June 2014, the Veteran was provided with an additional VA examination. The Veteran reported aggravation due to quick position changes, prolonged bending, standing for more than 5 to 10 minutes, or sitting longer than an hour. He rated his back pain as “10/10 all the time.” The Veteran reported being able to wash dishes, stand for 10 to 15 minutes, perform all activities of daily living, drive to appointments, and walk 100 yards. He reported an episode when he was walking across a street and tried to move too quickly when his right leg went out on him. The examiner noted that the back condition impacted the Veteran’s ability to work because he would have difficulty with prolonged sitting, standing, bending, or extended walking. The Veteran was able to bend over in a sitting position and put slip on shoes and pull over the heel. The Veteran had a slow, antalgic gait with mildly kyphotic posture and used a side wall for support. February 2015 private treatment records note extensive multilevel lumbar stenosis. The clinician noted that the Veteran had been treated conservatively for an extended period, and symptoms had persisted. The Veteran reported “several falls secondary to his lower extremities giving out.” Upon physical examination, the Veteran was in no acute distress and answered all questions appropriately. There was 3/5 strength bilaterally to the lower extremities. The examiner noted a slow gait, and there was bilateral lumbar paraspinal muscle tenderness without central instability or deformity present. There was paraspinal tenderness bilaterally, and the clinician noted that it appeared to be stable. In March 2015, VA received a correspondence from the Veteran which stated that the examiners had not used various testing methods. The Board acknowledges this contention but notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Thus, the Board will consider the functional impairment as reflected throughout the record as a whole and not based on any single method of measuring functional impairment. In November 2016, the Veteran was provided with an additional VA examination. The examiner noted that the Veteran was ambulatory with a right-hand walking cane. He reported daily persistent, intermittent low back pain that is severe in the morning due to prolonged same positioning and decreases to moderate after moving around, stretching, and oral pain medication. He reported no radiation of the discomfort and no other signs or symptoms. He stated that he chooses to be largely sedentary, so he does not have worsened back discomfort and mostly sits on a recliner. He reported increased back pain with stationary standing more than 10 to 15 minutes. He stated that walking around tends to relieve the discomfort. He stated that he avoids lifting and carrying and limits bending or stooping and twisting and turning due to increased back pain. He stated that he “does not want to get up or do anything, he has given up.” The Veteran declined to perform range of motion testing because he stated it would result in back pain. His gait was “somewhat stiff and slow but steady with fairly good mechanics.” The clinician stated that the Veteran “would be better suited to less physically demanding types of work activities, especially with reasonable accommodations for walking can use as needed and for alternating period of sitting, standing, and walking about.” In November 2017, the Veteran was provided with an additional VA examination. He reported that he “did not really improve any” after surgery and that he “still has a lot of pain every day.” He rated the pain as 10 out of 10. He reported that any level of activity causes more pain. The Veteran reported that he was unable to stand up straight without assistance, was limited in walking, and bending over “is impossible for him now and he does not sleep well due to the pain.” The examiner stated that the Veteran is limited in standing, bending, lifting, and twisting, and requires frequent change of position for comfort “likely incapable of even sedentary work.” The examiner noted guarding which results in abnormal gait or an abnormal spine contour. He noted intervertebral disc syndrome (IVDS) which did not cause any episodes of acute signs and symptoms that required bed rest prescribed by a physician in the past 12 months. The Veteran reported regular use of a brace and constant use of a cane. December 2018 private treatment records reflect that the Veteran underwent physical therapy and had shown “about 50% improvement of his symptoms” but “still ambulates with a stooped forward gait pattern” and “is disabled.” He reported increased low back pain when he stands straight. In April 2019, this matter was referred by the Board to the Director of Compensation Service for extraschedular consideration based on the November 2017 VA examiner’s opinion that the Veteran was unable to perform sedentary work. In November 2020, the Director provided a recommendation for a denial of entitlement to a TDIU on an extraschedular basis. The recommendation stated that the overall evidence fails to support the contention that any of the service-connected disabilities, or a combination of the effects of those disabilities, prevents all forms of employment, to include sedentary employment. In addition to the work history discussed above, November 2003 private treatment records note that the Veteran “last worked in July 2002.” While these treatment records are not applicable to the appeal period, the Board notes that the clinician stated that the Veteran was “obviously not a candidate for the labor market in view of his inability to raise his arms over 90 [degrees].” Further, November 1994 worker’s compensation documents note the following additional work history: maintenance worker for a chemical plant from March 1969 to May 1983; restaurant owner and operator from 1983 to 1988; painter from 1990 to 1992; odd jobs from 1992 to 1994; and, painter from 1994 to the present (November 1994). Regarding the Veteran’s education, training, skill, and experience, the record reflects he has completed the equivalent of a high school education with a GED and is able to read and write. Throughout the appeal period, the Veteran has shown the mental ability to follow instructions, as reflected during the examinations discussed above. Therefore, the record does not reflect that the Veteran’s service-connected disabilities limit the Veteran’s mental ability to perform various types of employment which do not require advanced education, training, skills, or experience, such as his work experience having owned and operated a restaurant. Regarding the Veteran’s physical ability (both non-exertional and exertional), the Board acknowledges the functional impairment discussed above which includes limitation of sitting or standing for prolonged periods. The Board also acknowledges the Veteran’s reports of being unable to lift his arms above his shoulder. The Board notes that the Veteran was observed being able to undress and put his arms above his shoulder and reaching to pick up change off the floor without difficulty; however, the Board also acknowledges that the Veteran may have been experiencing less severe symptoms at that time. Nonetheless, these observations reflect that the Veteran can, at least intermittently, perform such activities. Further, the June 2014 VA examination noted that the Veteran reported that he is able to physically perform all activities of daily living. Thus, the Board finds that the disability picture discussed above reflects a physical ability to engage in sedentary employment with limited long-distance walking and which allows for an accommodation for alternating between sitting and standing as needed. While VA law does not define ‘sedentary,’ the Board can give the term meaning and relevance on a case-by-case basis addressing the medical and lay evidence in light of the Veteran’s education, training, and work history. Specifically, where a Veteran’s ability to perform sedentary work is a basis for the Board’s decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning to the extent that it is not apparent from the Board’s overall discussion of the opinion as well as how the concept of sedentary work factors into the Veteran’s overall disability picture and vocational history, and the Veteran’s ability to secure or follow a substantially gainful occupation. Withers v. Wilkie, 30 Vet. App. 139, 147 (2018). Using the Merriam Webster dictionary definition of “sedentary” (not migratory; doing or requiring much sitting; not physically active) and in light of the VA examinations, the Board defines sedentary employment as occupations that involve much sitting, and do not call for much physical activity. Although sedentary work is defined to include much sitting, a certain amount of walking and standing is often necessary in carrying out job duties in sedentary employment. The record reflects that the Veteran is able to physically perform the intermittent walking and standing necessary to perform such employment. The Board acknowledges the opinions of the clinicians discussed above which state that the Veteran’s service-connected disabilities preclude substantially gainful employment, including the November 2017 VA opinion. However, as explained above, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Further, this determination must be made upon review of the record as a whole and not based upon the opinion of a single clinician after an examination which may or may not reflect the Veteran’s entire disability picture. (continued on the next page) Accordingly, the Board finds that the Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim that doctrine is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.