Citation Nr: 21007958 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-61 166 DATE: February 11, 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 denied. Entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular and extraschedular basis is denied. FINDINGS OF FACT 1. The Veteran’s left hip condition did not manifest during service or within one year of separation from service and is not due to and has not been aggravated by his service-connected back condition. 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; the Veteran has a single disability rated as 100 percent disabling, but he has no other disability rated at 60 percent, nor is 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 a left hip condition, to include as secondary to service-connected back condition have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 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 (2019). 4. The criteria for TDIU from June 3, 2014, to February 9, 2017, have not been met. 38 U.S.C. §§ 1110, 1154 (b) (2012); 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) in Jackson, Mississippi. 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. The Board finds there has been substantial compliance with its July 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) 1. Entitlement to service connection for a left hip condition, to include as secondary to service-connected degenerative disc disease, L-spine (back condition) Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1101 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). The term “chronic disease,” whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is included under 38 C.F.R. § 3.309 (a). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2019). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran asserts that his left hip condition is related to service. Alternatively, the Veteran asserts that his left hip condition is caused or aggravated by his service-connected back condition. Service treatment records are silent for complaints, treatment, or diagnosis of a left hip condition. In a May 2014 VA treatment record, the Veteran said that he had pain in his back, knees, and left hip pain for years with a pain level of 5 out of 10. In an October 2014 VA treatment record, it was noted that the Veteran had physical therapy in March 2014 for low back and left hip pain. In a November 2015 VA treatment record, worsening left hip pain was reported and the treating physician said that it might be from his back. At the November 2019 Board hearing, the Veteran testified that he was told his back was making his knee and hip hurt. The Veteran said that his left hip was caused by the problems he had with his back for many years. In a February 2020 VA examination, the examiner noted diagnosis of bilateral hip osteoarthritis. The Veteran reported a history of left hip pain dating back to 2007 to 2008. There was no surgery to the left hip. The Veteran said he was not seen or treated for his left hip during service. The left hip pain was sporadic and would “come and go” and reported that it became constant about 3 years ago. In a separate February 2020 VA opinion, the examiner opined that it was not at least as likely as not that the Veteran’s left hip condition was aggravated beyond its natural progression by service-connected back condition. The examiner reasoned that the Veteran reported a history of left hip pain dating back to 2007 to 2008. There was no surgery to the left hip. The Veteran also reported not being seen or treated for left hip during service. The Veteran said that initially the left hip pain was sporadic, but became constant about 3 years ago. He said he received injections, medication, and physical therapy with no relief. The examiner said review of service treatment records were negative for left hip complaints or treatment. The examiner noted in December 2015, degenerative changes involving both hips was noted and in an August 2019 bone, there was no evidence of loosening or infection in the right knee arthroplasty. There were stable degenerative changes in the spine and left hip. The examiner further stated that post-service medical records were reviewed. The examiner acknowledged multiple notes from pain management. Specifically, in April 2016, pain management noted complaints of pain in back, hips and knees. The Veteran reported pain radiated from the knee and started in 1978 with walking, standing, and sitting. A January 2016 treatment record noted hip pain for 20 years. The Veteran was diagnosed with right and left hip pain. The examiner said that a review of service treatment records were negative for left hip complaints or treatment. The Veteran was noted to have bilateral hips osteoarthritis per radiographs in 2015. The examiner stated that osteoarthritis was a primary disease process consistent with natural aging and not caused by or worsened by any other degenerative process in the body. The examiner concluded that bilateral hip osteoarthritis was consistent with natural aging and not worsened beyond natural progression by service-connected back condition. In a September 2020 VA opinion, the examiner opined that it was less likely than not that the Veteran’s left hip condition was related to service. The examiner reasoned that there was no evidence of treatment for any left hip complaint while in service. The only commentary in the medical record on the origin of the left hip complaint was anecdotal and based on the Veteran’s estimates. The February 2020 VA examination documented onset of hip pain as 2007 to 2008 per the Veteran’s report. This appeared, in the examiner’s opinion, to be a condition of aging that had its onset in service; no evidence of a condition was found in evidence of record after service approximately a year after discharge. The examiner further opined that it was less likely than not that the Veteran’s left hip condition was caused by or proximately due to the Veteran’s back condition. The examiner reasoned that there was a paucity of peer reviewed evidence in the medical literature that hip problems were caused by back problems. The Veteran had a confirmed diagnosis of degenerative disease of the hip. This was primary to the hip. Any referred pain to the hip, such as from back pathology, was a separate entity and did not cause hip degenerative disease. Additional post-service treatment records are silent for any nexus between the Veteran’s left hip and service and left hip and service-connected back condition. Overall, the Board finds that the Veteran’s left hip condition is not due to service or his service-connected back condition. Regarding direct and presumptive service connection, service treatment records are silent for complaints, treatment, or diagnosis of a left hip condition. Post-service treatment records do not show evidence of left hip condition until many years after service. Although a lack of contemporaneous records is not a bar to service connection, the lack of continuity of symptomatology is a probative determining factor in finding service connection. The Board acknowledges that the January 2016 VA treatment record pointed to by the February 2020 VA examiner found that the Veteran’s left hip condition began 20 years earlier. However, this would still have been over 15 years following separation from service. Additionally, the Veteran’s left hip condition was not diagnosed within one year of separation from service for service connection to be warranted based on presumptive service connection. Further, regarding secondary service connection, the Board acknowledges the November 2015 VA treatment record noting that the Veteran’s left hip condition might be related to his back condition. However, there is no conclusive finding that the Veteran’s left hip condition is related to his service-connected back condition. In contrast, the September 2020 VA examiner provided a competent and probative opinion finding that the Veteran’s left hip condition was not proximately due to or aggravated by his service-connected back condition. There is no other probative post-service treatment record drawing a nexus between the Veteran’s left hip condition and his back condition. The Board acknowledges in a November 2020 statement that the Veteran’s representative argued the February 2020 VA examiner did not consider the Veteran’s lay statements. However, the Board finds this not to be the case. The examiner explicitly stated that the Veteran’s lay statements reviewed. Regarding direct service connection, the Veteran himself did not assert that his left hip condition was due to service. In fact, the Veteran stated that the condition started between 2007 and 2008. Additionally, regarding the Veteran’s left hip condition being due to his back, the Veteran made this assertion and the VA examiner not only addressed proximate causation but aggravation as well. Thus, the Board finds that the examiner thoroughly addressed any arguments made by the Veteran in providing his opinion. The Veteran has offered his own opinion on etiology, stating that he currently has a left hip condition that are causally related to his active service. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau, 492 F.3d at 1372. Therefore, the Board affords more probative weight to the VA examiner’s opinions than the Veteran’s own contentions, and there are no medical opinions to the contrary. Thus, the Board finds that service connection for a left hip condition, on a direct and secondary basis, is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular and extraschedular basis 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) (2012); 38 C.F.R. § 3.350 (b) (2019). 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) (2019). 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. Separate from the period on appeal that is moot, 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. The Board may assign a TDIU in the first instance provided that certain schedular disability ratings requirements, such as a combined disability rating of 70 percent with at least one disability rating as 40 percent rating, are met. See 38 C.F.R. § 4.16 (a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16 (a) are not met). 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 hearing loss, bilateral, 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, from June 3, 2014, to February 9, 2017; radiculopathy left lower extremity associated with back condition, rated as 40 percent disabling from June 3, 2014, to February 9, 2017; and hearing loss, bilateral, rated as noncompensable. The Veteran’s combined rating was 80 percent. 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 hearing loss, bilateral, rated as noncompensable. The Veteran’s combined rating is 40 percent. Based on the Veteran’s combined disability rating of 80 percent from June 3, 2014, to February 9, 2017, the Board finds that the schedular rating requirements for a TDIU were met. 38 C.F.R. § 4.16 (a). However, from June 1, 2010, to June 2, 2014, and from February 10, 2017, the Board finds that the schedular rating requirements for a TDIU were not met. 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. Regarding the periods 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). 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 highschool. 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 hist 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 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 knee. 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 the 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. In a February 2020 back VA examination, the Veteran complained of pain with prolonged sitting, standing, and lying in bed for too long. The examiner determined that the Veteran’s back condition did not impact his ability to work. 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 applicable poverty threshold, as established by the U.S. Department of Commerce, Bureau of the Census, was just over $14,500 in 2010 (2 people, head of household under 65 years) and just over $11,000 (1 person, over 65 years) in 2015. See https://www.census.gov/data/tables/time-series/demo/ income-poverty/historical-poverty-thresholds.html. Additional information, such as yearly earnings statements is not available. Moreover, 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 fire watch at a construction site for 2 1/2 months. Prior to this, the Veteran said that he was a forklift driver. The Veteran’s statements seem conflicting regarding his work history. Assuming arguendo, that his job as fire watch at a construction site for 2 1/2 months was part-time and within the applicable poverty threshold, therefore being marginal, the Board notes that 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 his 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. The Board has carefully considered the Veteran’s statements regarding the effects of his disabilities on his employability. Although the Veteran experiences difficulty walking, standing, and lifting due to his back condition, repeated VA examinations have not indicated that he is precluded from obtaining or maintaining substantially gainful 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 addition, the examiners addressed the question of employability, noting that the Veteran had difficulty with walking, standing, and lifting due to his back condition; however, they did not find that his radiculopathy, tinnitus, or hearing loss, affected his employment in anyway. More pertinent, despite finding the Veteran’s limitations, the examiners did not find that the Veteran was unable to obtain employment. In summary, the record simply does not show or suggest that the Veteran was by virtue of his service-connected disabilities, rendered incapable of participating in any substantially gainful employment consistent with his education and experience. Therefore, from June 3, 2014, to February 9, 2017, TDIU on a schedular basis is not warranted. Further, from June 1, 2010, to June 2, 2014, and from February 10, 2017, referral of his claim to the Director, Compensation Service for consideration of such rating is not warranted and a TDIU rating is not warranted. 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. 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. The Board notes that SSA records show the Veteran to be disabled. However, these records are not binding on VA determinations. Moreover, the Social Security decision relied in part on impairment due to nonservice-connected disabilities. In summary, the record simply does not show or suggest 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 Saudiee Brown 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.