Citation Nr: 21010949 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 10-27 312A DATE: February 26, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Board assumed jurisdiction over a claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the case for additional development. The case now returns for further appellate review. Entitlement to a TDIU. As noted previously, in the October 2014 remand, the Board found that a claim for a TDIU had been raised in connection with the Veteran’s claim for a higher rating for his lumbar spine disability pursuant to Rice, supra. In this regard, a November 2012 VA medical examination indicated that the Veteran was not able to find work due to his lower back disorder because the jobs he applied for required some lifting, and his pain medications made him drowsy so he would fall asleep doing sedentary work. The Veteran found that he was unable to do any type of work at the present time due to his lower back pain and the medication used to control the pain. He was unable to lift, had increased pain on walking, and tended to doze off if seated more than a few minutes. Also, at a March 2014 VA examination, the Veteran stated he was unable to work due to his back pain. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular 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). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities”. Moreover, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. For the entire appeal period stemming from the date VA received the Veteran’s increased rating claim for his lumbar spine disability, i.e., April 17, 2007, he has been service-connected for lumbosacral strain, and associated right and left lower extremity radiculopathy. The Veteran’s lumbosacral strain has a 20 percent rating, effective March 7, 2000. His right lower extremity radiculopathy has a 10 percent rating, effective April 17, 2007; and a 20 percent rating, effective May 11, 2015. Finally, the Veteran’s left lower extremity radiculopathy has a 20 percent rating, effective May 11, 2015. Such results in a combined disability rating of 30 percent as of April 17, 2007, and 50 percent thereafter. However, while the Veteran does not meet the schedular threshold requirement for consideration of a TDIU for the entire appeal period, a TDIU may nonetheless be assigned on an extraschedular basis pursuant to C.F.R. § 4.16(b). The Board notes that, in an April 2015 letter, the Agency of Original Jurisdiction (AOJ) notified the Veteran of what was necessary to develop a TDIU claim, and requested that he fill out and submit a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU application). To date, the Veteran has not submitted such. However, according to records related to his Social Security Administration (SSA) disability benefits, the Veteran completed a GED, and he worked full-time as a mental health counselor from January 1976 to March 2011. The Veteran stated that he had only one job before he became unable to work. A May 2014 SSA Disability Decision stated that the Veteran had not engaged in substantially gainful activity since April 17, 2011. He was found to have been under a disability as defined by the Social Security Act since April 17, 2011 due to his hepatitis C, degenerative disc disease, peripheral neuropathy, and gastrointestinal disorder. The Veteran had previously worked as a counselor, performing semi-skilled work at the sedentary exertional level. The SSA Decision stated that the Veteran had the residual functional capacity to perform sedentary work. The Veteran can occasionally lift and carry 10 pounds, and he can frequently lift and carry less than 10 pounds. Within an eight-hour day, he can stand and walk for a total of two hours, and he can sit for a total of six hours. He can push and pull as much as he can lift and carry. He can occasionally stoop, kneel, crouch, and crawl; and he can climb ramps, stairs, ladders, ropes, and scaffolds. He can be productive 75 percent of the time in an eight-hour workday. In a November 2007 VA Primary Care Initial Evaluation Note, the Veteran stated that he worked weekends as the residential manager of a group home for the mentally ill and criminals. He had a slightly antalgic gait from low back pain; and he tended to shift his posture in his chair with some distress from low back pain. In a February 2008 Primary Care Initial Evaluation Note, the Veteran reported that he worked on weekends supervising the mentally challenged into community re-entry. In an August 2009 Primary Care Initial Evaluation Note, the Veteran stated that he worked as a group supervisor in a home for mentally incompetent patients; and that he generally had Wednesdays through Mondays off, but he had been trying to work overtime. An August 2011 Neurology Outpatient Consult noted that the Veteran was an unemployed residential counselor and former U.S. Army medical records clerk. In a February 2012 Primary Care Initial Evaluation Note, the Veteran reported that he got fired from his previous job working for a local government live-in group home. He stated that it was because of a verbal altercation with another employee. The Veteran also reported that he had been looking for a job for over a year. In a March 2012 Social Work Note, the Veteran reported that he had been unemployed since losing his job one year ago as a live-in counselor in a group home. He felt that he was unfairly dismissed from his job. In a November 2012 Neurology Outpatient Note, the Veteran reported that he worked in a sedentary job in a psychiatric hospital, but he retired in 2010 due to a dispute with supervisor. He stated that, since then, he had not been able to find work due to his lower back condition, as most of the jobs he applied for required some lifting. He also stated that his medications for pain made him drowsy, and he would fall asleep doing sedentary work. In an April 2016 Primary Care Note, the Veteran reported that he used to work as a forensic technician at a hospital, and he retired on disability a long time ago. In a September 2017 SATP E&M Note, the Veteran reported that he last worked in 2011 as a counselor in community health for mentally ill patients. In a September 2017 Mental Health Outpatient E&M Note, the Veteran reported that he had some college education. In a November 2017 Homeless Program Note, the Veteran reported that he was open to part-time employment that would accommodate his mobility issues. The Veteran noted he had difficulty going up and down multiple stairs. In a March 2009 VA Emergency Department Triage Note, the Veteran complained of lower back pain rated at 9 out of 10, which was made worse by movement. In a May 2011 Primary Care Note, the Veteran complained of back pain, and the examiner noted that the Veteran was standing while giving his history. The Veteran stated that it hurt when he sat down. In a July 2011 Primary Care Telephone Encounter Note, the Veteran stated that he was in such pain that he could not drive. A July 2011 Orthopedic Surgery Outpatient Consult stated that the Veteran’s right hip pain prevented him from sitting down. Standing was less painful than sitting, and lying down was best. The pain radiated down the inner thigh toward the knee. Upon examination, the examiner found that the right hip joint was not to blame for the generation of the Veteran’s pain; rather the lower segment spondylosis of the spine was responsible for the pain. In an August 2011 Primary Care Telephone Encounter Note, the Veteran stated that he had to take two or three fast-acting oxycodone in order to sit down to dinner, and this relief only lasted about two hours because of his back pain. He had to stretch out, and it was a chore to function because of his back pain. In an August 2011 Neurology Outpatient Consult, the Veteran again stated that his pain was worse when sitting and better when standing or supine. In an October 2015 Emergency Department Note, the Veteran complained of worsening right-side lower back, hip, and leg pain for the past five weeks. He stated that he had intense aching pain that radiated from the center of his lower back to the right side and through his hip down the back of his left leg, stopping at his knee. The pain had worsened to the point where he could not sit down. The pain was worst when he was sitting. He was able to bear weight and ambulate. In an April 2016 Primary Care Note, the Veteran stated that, in general, he experienced pain and stiffness first thing in the morning and after long periods of rest. He also experienced occasional flare-ups, such as after shoveling or moving mattresses, or after a sneeze or cough. In a May 2016 Pain Medicine Initial Evaluation Note, the Veteran reported constant aching pain in the lower back and back upper leg that stays when sitting. He stated that, when sitting up right, the pain in the low back spread to the right buttocks and shot down the back of the upper right leg. At a May 2007 VA examination, the examiner diagnosed the Veteran with chronic low back pain that was secondary to lumbar spine degenerative and post-operative changes. At such time, the Veteran reported that he was only working part-time two or three days a week. He stated that his back pain, which radiated to his left leg and groin, made it very difficult for him to hold a job; and that since leaving his last job, he had not been able to find work due to his lower back disorder, as most of the jobs he applied for required some lifting. At a November 2012 VA examination, the examiner diagnosed the Veteran with herniated discs at L4-L5 status-post laminectomy, lumbar canal stenosis at L2-L3 and L3-L4, and right lumbar radiculopathy. At such time, the Veteran reported that he had worked in a sedentary job in a psychiatric hospital, but he retired in 2010 due to a dispute with a supervisor. The examiner determined that the Veteran’s lumbar spine disability impacted his ability to work. Here, the examiner noted that, although the Veteran retired due to a dispute with a supervisor, the Veteran found that he was unable to do any type of work due to his lower back pain and the medication used to control the pain. The examiner further noted that the Veteran was unable to lift, had increased pain on walking, he tended to doze off if seated for more than a few minutes. At a March 2014 VA examination, the examiner determined that the Veteran’s back disorder impacted his ability to work. Here, the Veteran reported that he previously worked with mentally ill individuals; and that he was unable to work due to his back pain. At a May 2015 VA examination, the VA examiner diagnosed the Veteran with right lower extremity radiculopathy and advanced degenerative changes in the mid to lower lumbar spine with disc space narrowing at L3-L4 and L5-S1. The Veteran stated that he was in so much pain that radiated to both legs, resulting in difficulties completing his daily activities. He reported that he experienced flare-ups that impacted the function of the back. The examiner noted that the Veteran’s back disorder impacted his ability to work, but he did not elaborate other than to say that the Veteran was currently on disability due to his back problem. In two medical Individual Unemployability Statements concerning the Veteran’s service-connected lumbosacral strain and associated radiculopathy from November 2020, the examiner found that it was at least as likely as not (50 percent or greater probability) that, related to the Veteran’s service-connected disorders, the Veteran was able to perform sedentary work, exerting occasionally up to 10 pounds of force and/or frequently a negligible amount of force to lift, carry, push, or pull. The statement explained that such sedentary work involved sitting most of the time, but may involve walking or standing for brief periods of time. At a November 2020 VA examination for the Veteran’s back disorder, the examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, and IVDS. The examiner found that the Veteran’s back disorder impacted his ability to work. Here, the examiner noted that the Veteran had been retired since 2011; that his degenerative arthritis of the spine and the lumbar radiculopathy caused pain; and that when the pain was severe, the Veteran could not walk or stand. At a November 2020 VA examination for the Veteran’s peripheral nerves, the examiner diagnosed him with right lower extremity radiculopathy. When asked whether the Veteran’s peripheral nerve disorder impacted his ability to work, the examiner answered no; and stated that the Veteran had been retired since 2011. The Board has reviewed the balance of the Veteran’s remaining medical treatment records from the period on appeal. The findings in such records are substantially similar to those noted in the VA examination reports and treatment records described above. Based on the foregoing, the Board finds that the functional impairment associated with the Veteran’s service-connected disabilities include difficulty with lifting, climbing stairs, and driving; difficulty with prolonged sitting, standing, and walking; and issues with his pain medication, which made him drowsy. However, the evidence of record shows that he could stand and walk for a total of two hours; sit for a total of six hours; occasionally lift and carry 10 pounds; occasionally stoop, kneel, crouch, and crawl; occasionally climb ramps, stairs, ladders, ropes, and scaffolds; exert occasionally up to 10 pounds of force and/or frequently a negligible amount of force to lift, carry, push, or pull; and perform minimal exercise. Specifically, such would allow him to secure and maintain employment consistent with his GED and some college credits. Here, the Veteran would not be precluded from performing work that primarily involved desk work and only required minimal physical exertion; nor is he prevented from participating in occupations that provided or allowed for accommodations for his physical limitations, such as a standing desk. Likewise, the Veteran is not prevented from performing work that only required minimal lifting or that allowed the Veteran to take frequent breaks or shift his position when needed. Furthermore, the main reported reason he left his last job was because of a dispute with a coworker. Therefore, the Board finds that, although the Veteran’s service-connected disabilities may have negatively impacted his employability during the period on appeal, they did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In reaching such decision, the Board notes that the Veteran is in receipt of SSA disability benefits based, in part, on his lumbar spine disability and associated radiculopathy; however, such records reflect that it was a combination of such disabilities and his nonservice-connected hepatitis C and gastrointestinal disorder that rendered him unemployable. Further, while the SSA decision is probative evidence in regard to his TDIU claim and has been considered therein, it is not dispositive or binding on the VA since the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In sum, the evidence of record does not support a finding that the Veteran’s service-connected disabilities, alone, or in combination, are of sufficient severity to produce unemployability. Therefore, the Board finds that the limitations associated with the Veteran’s service-connected disabilities, either singularly or in combination, do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Consequently, referral for extra-schedular consideration of a TDIU is not warranted at ay point pertinent to the appeal period. In reaching this decision, 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 for a TDIU, that doctrine is not applicable in the instant appeal and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.