Citation Nr: 21012171 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 11-18 640A DATE: March 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities, even when considered in combination, have not been shown to preclude the Veteran from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to June 1990 and from January 1991 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board, most recently, in August 2019 for additional development. Specifically, the Board requested that the RO refer the Veteran’s case to VA’s Director of Compensation (Director), obtain the Veteran’s most recent VA treatment records, and afford the Veteran another opportunity to submit an updated VA Form 21-8940. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran provided testimony at a September 2015 hearing before a Veterans Law Judge (VLJ). A copy of the transcript has been associated with the claims file. After the VLJ who held the September 2015 hearing retired from the Board, the Veteran was offered the opportunity to appear at another hearing before a different VLJ. See October 2017 Board letter. The Veteran declined the opportunity to provide testimony at another hearing. See November 2017 Correspondence. As such, the Board may proceed with adjudicating the Veteran’s claim. The Board notes that after the RO issued a November 2019 Supplemental Statement of the Case, additional evidence was associated with the claims file. Specifically, additional VA treatment records were associated with the claims file in December 2020. A waiver is not necessary, nor is a remand for initial consideration of the evidence by the RO, as the newly associated evidence is cumulative of the prior evidence of record and/or not relevant to the Veteran’s claim. See 38 C.F.R. § 20.1304(c). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis. The RO initially denied the issue of entitlement to a TDIU in the February 2010 rating decision. The Veteran contends that a TDIU is warranted due to his service-connected disabilities, to include lumbar spine and left knee disabilities. See July 2010 Notice of Disagreement (NOD); July 2010 VA Form 21-8940. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU can also be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b), if it is determined that the veteran is unemployable by reason of service-connected disability but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). However, the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA’s Director of Compensation Service for initial consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). Nevertheless, the Board may consider whether the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation such that referral of entitlement to a TDIU on an extraschedular basis is warranted under 38 C.F.R. § 4.16(b). “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. 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,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA adjudicator, not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran is service-connected for degenerative disc disease of the lumbar spine, rated at 10 percent disabling, effective May 29, 2009, and at 20 percent disabling, effective, April 30, 2015; a left knee disability, rated at 10 percent disabling from May 29, 2009; and bilateral lower extremity radiculopathy, rated at 10 percent disabling, each, effective November 8, 2016. The overall disability rating was 20 percent from May 29, 2009, 30 percent from April 30, 2015 and 40 percent from November8, 2016. The Veteran has, at most, a combined rating of 40 percent during the appeal period. Therefore, the Veteran does not meet the criteria for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). As previously noted, a TDIU can also be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board cannot consider an extraschedular TDIU in the first instance, and the claim must be referred to VA’s Director. See Bowling v. Principi, 15 Vet. App. 1 (2001); see also Wages v. McDonald, 27 Vet. App. 233 (2015). In that regard, in the August 2019 Remand, the Board determined referral for initial consideration was warranted and the Veteran’s case was referred to the Director. On remand, the RO referred the case to the Director in September 2020 for extraschedular consideration and recommended that entitlement to a TDIU be denied. See September 2020 VA Memo. In a November 2020 decision, the Director concluded that the medical evidence of record demonstrates the Veteran would have difficulty in standing, sitting, walking, lifting, bending, and climbing stairs; however, the evidence of record did not show the Veteran would be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. See November 2020 Advisory Opinion. The Board finds that a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted for any time during the appeal period. The Veteran reported that he was unable to secure gainful employment due to his back and knee pain, as well as migraine severe headaches, high blood pressure an asthma. See July 2010 NOD. In December 2009, the Veteran reported that though he was working at the time, his back pain and degenerative joint disease did not allow him to stand as much as he had anticipated at his job. See December 2009 VA treatment records. The Veteran indicated that he last worked in January 2010 in insurance sales. See July 2010 VA Form 21-8940. The Veteran’s employer noted the Veteran was terminated due to not meeting sales quotas. See November 2010 VA Form 21-4192. At an October 2009 VA examination for the Veteran’s back and left knee, the Veteran reported that his occupation was affected because he was not as productive as he would be if he did not have the symptoms of pain and that he lost sales jobs because of pain related to his back and knee disabilities. An April 2015 VA examiner noted the Veteran’s reports of difficulty sitting, standing, and walking due to his back and knee disabilities, noting the Veteran has been unable to secure gainful employment once he discloses his physical limitations during the interview process. See April 2015 VA examinations. VA examinations in November 2016 noted the Veteran’s back and knee disabilities negatively impact his ability to perform tasks such as sitting, walking, standing, and lifting, and that the Veteran uses assistive devices and requires assistance getting dressed every day. See November 2016 VA examinations. In a May 2017 addendum medical opinion, the VA examiner noted the Veteran’s knee condition limits his ability to perform occupational tasks that involve walking, standing, and sitting for prolonged periods of time. In July 2020, the VA examiner noted the Veteran uses a cane due to pain and instability caused by his back and knee disabilities, has difficulty standing, bending, climbing stairs, and activities of daily living, but opined that his conditions did not affect his ability to work. See July 2020 VA examinations. The Veteran provided testimony at a hearing before the Board in September 2015. The Veteran testified that his work history included working in retail and insurance sales. See September 2015 Hearing Transcript. He stated that he was told by a doctor that he could not return to work and that a doctor would not sign a release to allow him to return to work. Id. He stated that, as a result, he lost his job, and has not been able to obtain another job since due to his physical limitations. Id. He testified that he previously worked at a furniture store that required unloading equipment from a truck but was terminated for refusing to sign a release due to his physical limitations. Id. The Veteran also testified that he was not receiving any social security disability benefits, was pursuing an associate degree and was about to graduate and would work if someone would hire him. Id. The Veteran further testified that he was trying to find something that he could do from home, so he was in the IT field. Id. In October 2017, a VA treatment record notes “working – coach.” See October 2017 VA treatment records. However, there was no further explanation. An October 2019 VA treatment record indicated the Veteran’s work history included running a chartered bus company with father in-law. However, the RO was unable to verify the Veteran’s most recent work experience. As noted, the Veteran was afforded opportunities to provide an updated VA Form 21-8940. See February 2018 and November 2019 VA letters. To date, the Veteran has not provided any response. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Without crucial information concerning any additional employment information, the Board cannot find that any further development is warranted. Finally, the record demonstrates the Veteran did not previously complete vocational rehabilitation and employment (VR&E) due to not completing the evaluation process but more recently reapplied further indicating his interest in obtaining employment. See October 2012 VR&E records; September 2020 VA Appointment Letter. In sum, the Board does not dispute that the Veteran’s service-connected disabilities would impact his ability to work, including physical limitations; however, the Veteran’s overall disability picture does not show that he is precluded from substantially gainful employment due to any of his service-connected disabilities. The Veteran’s educational background, employment history, and medical records demonstrate the Veteran has the mental capacity to perform occupational duties, and ability to work with accommodations for his physical limitations. While the Board recognizes the Veteran’s knee and back disabilities impact his ability to ability walk, sit, and stand for prolonged periods of time, the evidence is against finding the Veteran is precluded from securing and maintaining all forms of employment. His varied background in retail and insurance sales, coupled with his eduction which includes some college work, demonstrate that he has the mental capacity to obtain gainful employment. As such, the Board finds that the weight of the evidence of record is against finding that the Veteran is unable to obtain or retain substantially gainful employment because of his service-connected disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.