Citation Nr: 21009988 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 11-12 250 DATE: February 23, 2021 ORDER 1. Entitlement to a disability rating in excess of 10 percent for muscle injury and neuralgia of the thorax as residual to a shell fragment wound to the chest is denied. 2. Entitlement to referral for consideration of a total disability evaluation for compensation based on individual unemployability due to the service-connected disabilities (TDIU) on an extraschedular basis is not warranted. FINDINGS OF FACT 1. The Veteran’s muscle injury and neuralgia of the thorax has not approximated a moderately severe muscle injury or severe incomplete paralysis. 2. The preponderance of the evidence is against a finding that the Veteran is precluded from obtaining and sustaining gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for muscle injury and neuralgia of the thorax as residual to a shell fragment wound to the chest have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8210-5319. 2. The criteria for referral for consideration of a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from December 1966 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his April 2011 substantive appeal, the Veteran requested for a hearing before the Board at his local RO. He was scheduled for an April 2014 Travel Board hearing, but he withdrew his hearing request in March 2014. However, in correspondence dated in April 2016, the Veteran requested a video conference hearing at his local RO. In accordance with his request, the Board remanded the case for a hearing in October 2016. The hearing was scheduled for January 25, 2017. On January 23, 2017, the Veteran’s then representative indicated that the Veteran wished to withdraw his hearing request. As such, the Board considered the hearing request withdrawn. The Board remanded the appeal in September 2017 to schedule the Veteran for a VA examination. The Board finds there has been substantial compliance with the prior Board remand and will now consider the Veteran’s claims on the merits. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for muscle injury and neuralgia of the thorax Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding under 38 C.F.R. § 4.14 do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s service-connected muscle injury and neuralgia of the thorax is currently rated under Diagnostic Codes 8510-5319, which provides rating criteria for paralysis of the vagus pneumogastric cranial nerve and muscle injuries to the torso. Diagnostic Code 8510 provides for a 10 percent rating if paralysis is incomplete, but moderate. A 30 percent rating is warranted if the paralysis is incomplete, but severe. A 50 percent rating was warranted if paralysis is complete. A corresponding Note suggests that evaluation is dependent upon the extent of sensory and motor loss to organs of the voice, respiration, pharynx, stomach, and heart. 38 C.F.R. § 4.124a, Diagnostic Code 8510. Diagnostic Code 5319 contemplates injuries to Muscle Group XIX, which affects support and compression of abdominal wall and lower thorax, flexion and lateral motions of the spine, and synergist in strong downward movement of the arm. Under Diagnostic Code 5319, a 10 percent disability rating is warranted for a moderate disability. A 30 percent disability rating is warranted for moderately severe disability. A maximum 50 percent disability rating is warranted for severe disability. 38 C.F.R. § 4.73. Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d). The United States Court of Appeals for Veterans’ Claims (Court), citing Robertson v. Brown, 5 Vet. App. 70 (1993), has held that 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006). A moderate muscle disability contemplates: injury characterized by a through-and-through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service treatment record or other evidence of in-service treatment for the wound; or, a record of consistent complaints of one or more of the cardinal signs and symptoms of a muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, a moderate muscle disability consists of: entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; some loss of deep fascia or muscle substance impairment of muscle tonus and loss of power; or, lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability contemplates: injury characterized by a through-and-through or deep penetrating wound by a small high-velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service treatment record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; or, if present, evidence of inability to keep up with work requirements. Objectively, a moderately severe muscle disability consists of: entrance and (if present) exit scars indicating track of missile through one or more Muscle Groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; or, tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability contemplates: injury characterized by a through-and-through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service treatment record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; or, if present, evidence of inability to keep up with work requirements. Objectively, a severe muscle disability consists of: ragged, depressed, and adherent scars indicating wide damage to Muscle Groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; or, tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of a severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of Muscle Groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. For VA rating purposes, the cardinal signs and symptoms of a muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). After reviewing all the evidence, the Board finds that the preponderance of the evidence is against a finding that the muscle injury and neuralgia of the thorax as residuals of a shell fragment wound to the chest is a moderately severe muscle impairment or is manifested by severe incomplete paralysis. The reasons follow. By way of history, the service treatment records show that in December 1968, the Veteran sustained fragment wounds to his anterior chest, abdomen, and left thigh. He was hospitalized and a right hemopneumothorax was treated with closed tube thoracostomy over a five-day period. Exploration of the abdomen on the day of the injury was negative, except for a one-centimeter laceration of the right dome of the liver, which required no suturing and was treated with a Penrose drainage. The left lower extremity wounds did not involve a bone, nerve, or artery and healed after delayed primary closure. In January 1969, the Veteran had a physical examination and was found to be within the normal limits. He had a healed right chest tube thoracostomy and entrance would site. There was a well healed midline abdominal scar without evidence of herniation and the remainder of the abdominal examination was negative. There were two small superficial healed wounds of the anterior medial aspect of the left thigh. The Veteran was placed on convalescent leave, which he tolerated without difficulty. In the later part of January 1969, the Veteran was evaluated, and his wounds healed. He had no respiratory abnormalities and was essentially asymptomatic except for some exacerbation of low back pain. The Veteran’s low back pain was evaluated, and no etiology was found. His Medical Board Report showed that the Veteran’s convalescence was unremarkable. The Veteran was then discharged from the medical holding company in April 1969. He remained on limited duty for 90 days thereafter. During this period of time, the Veteran complained of chest pain. The Medical Board Report contained a physical examination. The physical examination showed the Veteran had well-healed scars over the chest and abdomen. His lungs were clear to auscultation and percussion. There was no pain on lateral compression of the chest. There was slight pain with PA compression. The remainder of the physical examination was unremarkable. At a March 2009 VA examination, the Veteran stated that he was always in pain. He said that his pain is located in the back behind the right scapular, measured 10 on a scale of 10, and worse with coughing or exertion. He also said he had pain at the left shrapnel wound on the left side of the chest that was a 4 or 5 on a scale of 10. The examiner found the Veteran’s pulmonary was normal upon inspection and palpation. Additionally, the Veteran had a normal auscultation and percussion in his left and right chest. An inspection of the Veteran’s abdomen was normal. There was no abnormality of auscultation or tenderness noted. All the muscles tested were rated at a 5 out of 5 and the examiner found no atrophy, spasm, or other muscle abnormalities. The examiner also found all the cranial nerves were intact and his reflexes were normal. A chest x-ray was conducted as part of the VA examination and the Veteran’s heart, mediastinum, lungs, pulmonary vessels, and pleural surfaces were unremarkable. There was a “tiny shrapnel wound noted on right mid chest.” The Veteran also had a pulmonary function test (PFT) as part of his VA examination. His lung volumes were found within normal limits, but the diffusing capacity was mildly reduced. A separate March 2009 VA treatment record shows that the Veteran complained of pain in his left lung and back for the past two weeks. At an October 2009 VA treatment visit, he reported he had pain in his low back, left shoulder, and right leg. Upon examination, the Veteran had a regular heart rate and rhythm. His lung was noted to have a diminished right base with occasional friction rub, and it was clear on the left upper and lower lung. The Veteran also had no chest pain, tachycardia, shortness of breath, wheezing, or cough. A March 2010 VA treatment note shows that the Veteran had clear lungs bilaterally, and his heart was noted to be regular and distant. At the time of a November 2010 VA examination, the Veteran stated that his symptoms were progressively worse. He stated that he experienced shooting pain into his bilateral chest area with mild physical exertion. He said he had pain at the right chest area with sneezing or coughing. He stated that his pain was a 10 out of a 10 all over his whole body, except for his head. The Veteran stated that there also was no “real change” and that he manages the pain well. The examiner diagnosed the Veteran with small metallic shrapnel fragments in the lower lobe of the right lung; chronic pleuritis due to shrapnel wound injury; and normal spirometry test. The examiner noted that there was chest wall scarring from the drainage tube and shell fragment wound but there was no deformity of the chest wall found. The Veteran was provided a PFT test and noted to have normal spirometry with mild reduced diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO). The examiner reported that the Veteran had a pain in his left quadricep, but there was no decreased coordination, increased fatigability, weakness, or uncertainty of movement. The examiner found that the muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. The examiner concluded that the Veteran’s disabilities should not prevent him from having a light duty occupation, such as an office or desk job. A VA respiratory and muscle injury examination was provided in August 2011. The Veteran stated that he continued to have breathing problems and discomfort in his chest wall with routine breathing. There was no evidence of congestive heart failure or pulmonary hypertension. Upon examination, the Veteran had wheezing and decreased sounds on the right side and wheezing on the left. The examiner found mild end expiratory wheezing on the left upper posterior lobe and right posterior lower lobe. His diaphragm excursion and chest expansion were noted to be slightly limited. Furthermore, the examiner noted that there was no pain, decreased coordination, increased fatigability, weakness, or uncertainty of movement related to his muscle injury. The examiner did note that the Veteran had chronic respiratory discomfort and occasional mild spasmodic breathing. There were no flare-ups of the muscle injury residuals noted. The examiner stated that the Veteran’s muscle strength was at a 5 out of 5, which is full strength, and that the Veteran’s muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. There was no motion of any joint limited by muscle disease or injury or a loss of deep fascia or muscle substance. March 2019 VA peripheral nerves, muscle injury, and respiratory VA examinations reports show the Veteran stated that his muscle injury had worsened since his last examination. He stated that he has pain in his chest, the right side of the abdomen, the left buttocks/hip, and the left thigh. He said he had very little pain in his chest at rest, but it mainly hurts with heavy breathing and when reaching with his right arm out. He also states that he wakes up with pulsating pain. He also reported that he has no numbness, tingling, or constant burning pain in his chest. He stated that he has numbness at his abdominal scar with radiation, but no constant burning pain. During that examination, the Veteran was noted to have normal muscle strength (5 out of 5), reflexes, and sensations. The examiner stated that the Veteran’s muscle injury did not affect muscle substance or function and he did not have any signs or symptoms attributable to a muscle injury. There was no muscle atrophy noted on examination. The Veteran refused to complete a PFT during the examination, stating that he has done the test multiple times over the last 20 years and that he knows he would not be able to complete it during the examination. He stated that he will never be able to complete the test again. The examiner stated that the Veteran would have a difficult time doing any work that requires anything more than mild physical exertion. The examiner stated that the Veteran would be best suited for work such as clerical or telemarketing. As an addendum to the March 2019 VA examination, the examiner wrote after reviewing the examination that there is no evidence that the pain significantly limits the Veteran’s functional ability. Furthermore, the examiner stated that a review of the submitted March 2019 VA examination does not confirm loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement for the muscle group affected. In this case, the service treatment records do not show evidence of hospitalization for a prolonged period for treatment of residuals of the residuals of a shell fragment wound, as well as VA examination findings do not show a consistent complaint of cardinal signs and symptoms of a moderately severe muscle disability. Furthermore, the VA examination findings do not document a loss of deep facia, injury to muscle substance with visible or measurable atrophy, or loss of strength. 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Code 5319. Additionally, the record does not indicate that the residuals of a shell fragment wound have manifested as consistent complaints of cardinal signs and symptoms of muscle disability and inability to keep up with work requirements. For instance, the VA examiners found no cardinal signs and symptoms of muscle impairment. The Board finds that the Veteran’s residuals of shrapnel wound have not resulted in sensory and motor loss to organs of his voice, respiration, pharynx, stomach, and heart. While the Veteran’s had mild reduced diffusion capacity of the lung at his November 2010 VA examination and wheezing at his August 2011 VA examination, the preponderance of the evidence shows that the Veteran’s respiratory function was normal. Additionally, the lay evidence and medical records are silent to sensory or motor loss of the Veteran’s voice, pharynx, stomach, and heart. The Board also finds that the residuals of a shell fragment wound have not approximated a maximum 50 percent rating, that is, severe muscle impairment of the muscle group throughout the appeal period. The lay and medical evidence does not otherwise suggest that the symptomatology and functional impairment of the residuals of a shell fragment wound manifested as severe muscle impairment. Specifically, the evidence does not reflect objective signs of ragged depressed and adherent scars indicating wide damage to muscle groups; loss of deep fascia on palpation; muscles that swell and harden abnormally; or severe impairment on test of strength, endurance, or coordination of movement. Additionally, the preponderance of the evidence is against a finding that residuals of a shell fragment wound manifested as a through and through or deep penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring. The Board has considered the effects of the Veteran’s symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for diseases and injuries of the thorax. The Board finds that the 10 percent rating already assigned contemplates the Veteran’s symptoms of fatigue, weakness, lack of endurance, incoordination, tenderness to palpation, and pain to include pain on weight bearing. The Veteran’s muscle strength in the March 2009, November 2010, August 2011, and March 2019 VA examinations was normal, at 5/5, and there was no weakness noted. These clinical findings are evidence against the residuals of a shell fragment being more than moderately disabling. Thus, a higher rating than 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the disability picture for the period on appeal. As the preponderance of the evidence is against the appeal for a disability rating in excess of 10 percent for muscle injury and neuralgia of the thorax as residual of a shell fragment wound to the chest, the appeal for a higher rating is denied. 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Code 5319. 2. Entitlement to a TDIU rating The Veteran believes he is entitled to TDIU, due to the VA sending him a letter in 1983 stating that he was unable to work because of his service-connected disabilities. In April 1983, VA Vocational Rehabilitation sent the Veteran a letter stating that based on his physical examination and a review of his VA medical record, they felt it would be unwise for the Veteran to accept a job in mosquito control. The position in question would require the Veteran to lift and carry items, coupled with a high humidity job environment that would probably be detrimental to his service-connected disabilities. The Veteran stated that he could not accept the position because of this letter from the VA and that this letter “ruined [his] life.” The Veteran stated that every job he applied for at that time denied him employment based on the letter he received from the VA. In his VA Form 9, the Veteran stated that it was not the kind of work that he was during down for, it was the fact that he was turned down for a position due to his physical condition. He stated that without a VA medical release, he could not work. A TDIU rating may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. The Veteran is service connected for the following disabilities: psychoneurosis, mixed type, anxiety, and hypochondriasis at 30 percent disabling; pleuritis due to residuals of a shell fragment wound at 30 percent disabling; scars on the left thigh due to a fragment wound at 10 percent disabling; neuralgia of the thorax at 10 percent disabling; and painful abdominal scar at 10 percent disabling. The Veteran is also service connected for incisional hernia in abdominal scar and scars on the abdomen and chest, but these disabilities are noncompensable. The Veteran is at a combined disability rating of 60 percent since June 25, 2004. Thus, the threshold service connection requirements set forth in 38 C.F.R. § 4.16(a) for a TDIU rating on a schedular basis are not met. However, it must still be determined whether his service-connected disabilities precluded him from engaging in substantially gainful employment on an extraschedular at any point of the appeal period. Veterans who are unable to secure gainful employment by reason of service-connected disabilities but fail to meet the criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration under 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director of Compensation for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. In order to grant a TDIU rating on an extraschedular basis, the record must reflect that circumstances, apart from nonservice-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disability, is capable of performing the physical and mental acts required by employment, not whether he can find employment. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of “substantially gainful employment,” in part, by noting the following standard announced by the United States Court of Appeals for the Eight Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). It is clear that the claimant need not be a total “basket case” before it may be found that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. However, service-connected disabilities, alone, must be sufficiently severe to produce unemployability. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the veteran. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 4.3. As the Board itself cannot assign an extraschedular rating, including on the basis of a TDIU rating, in the first instance; it must first specifically determine whether to refer a case to the Director of Compensation Service for an extraschedular TDIU evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. 38 C.F.R. § 4.16(b). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In consideration of all the lay and medical evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful employment due to his service-connected disabilities at any point during the appeal period, and referral for extraschedular consideration of a TDIU rating is not warranted. The reasons follow. Regarding the Veteran’s education, training, skill, and work history, a review of the record reveals that the Veteran has not filed a formal Application for Increased Compensation Based on Unemployability (VA Form 21-8940). However, records from Social Security Administration show that the Veteran’s highest grade completed was the 12th grade. Additionally, he completed special job training as a photo optical technician in 1973. A November 2010 VA examination for psychiatric disabilities show that the Veteran was employed in camera repair until 1979, when he moved to Florida and worked various labor jobs. The Veteran reported during that examination that the last time he worked was in 1986, making submarine detectors. The SSA records show he worked as a janitor and a battery completion technician. Additionally, at the April 2005, November 2010, and March 2019 VA examinations, the Veteran reported that he worked odd jobs, such as doing manual labor on farms, but did not have a permanent position. During his March 2019 VA examination, he reported that he stopped regular work in 1995. At the Veteran’s March 2009 VA examination, the Veteran stated that he has been unemployed for 10 to 20 years and he lives on his VA pension. He stated that he did not work because of his right sciatica. The Board notes that the Veteran is not service connected for a right sciatica disability and this is evidence against a finding that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, as he specifically attributed his not working to a non-service-connected disability. Furthermore, the March 2009 VA examiner stated that the Veteran is able to perform light and moderate duties. Due to the residuals of his shell fragment wound, the examiner concluded that the Veteran would not be able to perform in occupations that required heavy lifting or heavy equipment. The examiner also stated that the Veteran has been able to take care of the yard around his trailer and the Veteran reported that he lifted weights every day for at least 20 years. The examiner noted that the Veteran had no symptoms from his scar and that he could perform light to heavy duty occupations. The Veteran applied for Social Security Administration (SSA) disability and indicated that he was limited in his ability to work due to disabilities related to his arm, leg, back, feet, hip, stomach, respiratory problems, and high blood pressure. The Veteran is not service connected for disabilities related to his arm, back, feet, hip, and high blood pressure. He stated that he is in constant pain and his disabilities affect his ability to concentrate. He also stated that he cannot sit or stand for a long period of time or walk very far. When he gets bad back pain, he can hardly breathe. The Veteran had a Physical Residual Functional Capacity Assessment in January 2009 related to his Social Security application. The evaluator found that the Veteran could occasionally lift and/or carry up to 20 pounds and frequently lifted and/or carried up to 10 pounds. He could also sit, stand, and/or walk with normal breaks for about 6 hours in an 8-hour workday. Additionally, the evaluator found the Veteran could do an unlimited amount of push and/or pull. The evaluator noted that the Veteran should not be in environments that were extremely cold or hot or where there are hazards (machinery, heights, etc.). In the November 2010 psychological VA examination report, the examiner found that there was no total occupational and social impairment due to the Veteran’s psychological disability. However, the examiner did note that there is a reduced reliability and productivity due to his psychological disability. The examiner stated that the Veteran is very social and though he reported severe anxiety and moderate depression, it is his physical problems that interfere with his ability to work. The examiner wrote that anxiety and depression are secondary to the Veteran’s physical problems. His inability to work has been the primary cause of his current stressors. Within the November 2010 muscle injury VA examination report, the examiner concluded that the Veteran’s service-connected residuals of a shell fragment wound to the chest with pleuritis, thoracic neuralgia, right chest scar, incisional hernia scar, and scar to the left thigh should not prevent him from securing or following employment that light duty, such as an office or desk job. The examiner from the August 2011 VA examination stated that the Veteran’s chronic post-traumatic chest wall myalgia would create a significant effect to his occupation. The examiner continued to state that the Veteran’s disability would impact his ability to lift and carry, his reach, and he would have pain. Additionally, the mild paraseptal emphysema, retained small metallic fragment in the right lower lung lobe, and minimal parenchymal scarring in the right lung base would result in lack of stamina and pain on occupational activities. At his March 2019 VA examination, the examiner determined that the Veteran’s scars do not impact his ability to work. The examiner also determined that the Veteran’s neuralgia and peripheral neuropathy does impact his ability to work. The examiner stated that the Veteran’s abdominal scar has a herniation that protrudes and is painful with lifting, carrying, and bending, so the Veteran would have a difficult time doing any work besides minimal physical exertion due to the condition. Furthermore, his peripheral neuropathy would cause pain with moderate to strenuous activity. His respiratory disability would impact his ability to work because the Veteran would not be able to do prolonged walking. The examiner stated that the Veteran would not be able to work in a manual labor position. Despite the functional impact, the examiner opined that the Veteran would be able to work in a position such as telemarking or other clerical work. In February 2017, the Veteran’s attorney at the time stated that the Veteran offers that the examiners are medical professionals untrained in the realities of vocational factors, like job availability in the economy, responsibilities associated with such jobs, and whether a particular individual could be successfully placed in employment. However, that is not the standard upon which to consider if the Veteran is eligible to be referred for extraschedular consideration of TDIU. Instead, the Board must consider if the Veteran’s service-connected disabilities preclude him from securing and follow a substantially gainful employment. The Board acknowledges that the Veteran’s residuals of shrapnel wound causes some impact on the Veteran’s ability to secure or follow substantially gainful employment. However, multiple VA examiners and examiners with SSA have noted that the Veteran can obtain employment that includes minimal physical exertion. Based on these assessments of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment. For example, while the Veteran may not be able to perform hard manual labor, there are jobs that can be performed from home, such as being a telemarketer or jobs that involve data entry. A telemarketer is usually provided with a script that describes the product or services and which job can be performed from home. With data entry, the Veteran can enter data into the system. These kinds of jobs would be repetitive, have structure, would not necessarily involve new tasks or novel concepts, would allow the Veteran to take breaks as needed, and would not exceed the physical or mental limitations addressed above. Additionally, the Veteran had been a janitor in the past, which job is not labor intensive, and this is a job he could perform that would not exceed his physical and mental limitations. Further, the Veteran appears capable of performing certain cashier positions or work as a library, movie, or museum attendant. These are also jobs that are not labor intensive and would not involve new tasks or novel concepts. This is evidence against a finding that the Veteran was precluded from all forms of substantially gainful employment. The Veteran is competent to address his observed symptoms; however, a determination regarding TDIU is to be made by the adjudicator. The Veteran has submitted statements indicating that he was fully disabled due to his service-connected disabilities, but this assertion is not supported by the contemporaneous evidence of record or the opinions of multiple VA examiners during the relevant period, as discussed above. The opinions of the VA examiners and SSA examiners during the relevant period reflect moderate impairment due to service-connected disabilities, but not a level of severity commensurate with unemployability. These examiners are medical experts who were able to personally examine the Veteran and provided reports with objective findings that support their conclusions, and which are consistent with the longitudinal evidence of record during the relevant period. Accordingly, the statements of the VA examiners are more probative than the statements of the Veteran regarding the issue of entitlement to a TDIU rating. Based on the foregoing, the Board finds that the most probative evidence of record preponderates against the claim, and the Veteran has not established that he is precluded from substantially gainful employment due to the impairment of his service-connected disabilities. Accordingly, the Board finds that referral to the Director of Compensation Service for extraschedular consideration of a TDIU rating is not warranted. The benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.