Citation Nr: 21012379 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-00 255 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to July 1971, from October 1971 to October 1976, and from October 1977 to December 1989. This appeal was remanded by the Board of Veterans’ Appeals (Board) for additional development in June 2015, November 2017, and July 2018. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question 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, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). 1. Entitlement to TDIU for service-connected disabilities is denied. The Veteran is seeking total disability based on individual unemployability (TDIU). He claims that pain from his service-connected disabilities, and the medications that he takes to treat those disabilities, render him unable to obtain and maintain gainful employment. See June 2014 VA-Form 21-8940 ; see also Notice of Disagreement received November 2014. The Veteran does not meet the schedular requirements for the assignment of a TDIU. As of the date of this decision, his service-connected disabilities consist of: cervical spine degenerative disc disease (DDD) (20 percent), right knee degenerative joint disease (10 percent), left knee medial meniscus tear with degenerative joint disease (10 percent), and left knee instability (0 percent). The combined evaluation of these disabilities is 40 percent. Since the combined rating does not meet the schedular requirements for a TDIU, only 38 C.F.R. § 4.16(b) is applicable. Although the Veteran does not meet the schedular requirement for the assignment of a TDIU, the Board will consider whether TDIU on an extraschedular basis is appropriate in this case. The record indicates that the Veteran graduated from high school and attended two years of college. From August 2002 to June 2011, he worked as an electrician at the Pearl Harbor Shipyard and earned a maximum of $6,500 per month. See June 2014 Application for Compensation Based on Unemployability. A review of the Veteran’s postservice medical records reveals that prior to March 2020, the Veteran had not reported to a VA primary care appointment since 2014. See VA Treatment Record received July 2020. Accordingly, the analysis below, which focuses on the most salient and relevant evidence of record, consists primarily of recent VA examinations and VA medical opinions. In March 2018, the Veteran underwent a VA examination to evaluate what effect his service-connected disabilities would have on his ability to follow a substantially gainful occupation. The examiner, Dr. W.O., first addressed the Veteran’s degenerative disc disease, and noted that DDD was typically asymptomatic without significant functional limitation, and, as such, would not impact occupational and employment activities. While Dr. W.O. acknowledged the Veteran’s reports that the condition caused his neck to be very painful to the touch and upon movement, he indicated that these symptoms were not constant and were only present during episodes. Furthermore, Dr. W.O. noted that these movements were not necessary for most occupations. Ultimately, Dr. W.O. opined that the Veteran’s DDD did not significantly limit his ability to perform his last job as an electrician, in fact, he specifically noted that the Veteran reported that he retired due to pain in his knees and shoulder, rather than his neck. See March 2018 VA Examination. Regarding the Veteran’s service-connected knee condition, Dr. W.O. acknowledged that the condition contributed to the Veteran’s retirement as an electrician at the Pearl Harbor Naval Shipyard, in part, because he could no longer perform his regular duties due to knee pain. Specifically, the Veteran reported that his non-service-connected shoulder condition caused pain and rendered him unable to carry his tool bag, and pain from his service-connected knee condition interfered with his ability to perform duties required by his job such as walking and crawling. The Veteran stated that he could only walk ten minutes before needing to stop and rest. The Veteran also reported that after retiring he had not been very active; however, he attributed this inactivity to prostate and bladder conditions that caused frequent urination. Ultimately, the examiner concluded that while the Veteran would be unable to perform a job that required significant amounts of crawling, walking, kneeling or standing, his bilateral service-connected knee condition would not impact occupation and employment where these activities were limited and the Veteran could rest between periods of walking. More specifically, Dr. W.O. held that the Veteran’s bilateral knee conditions would have, “no significant impact on sedentary occupations.” See March 2018 VA Examination. In June 2020, the VA obtained an addendum medical opinion to address whether the medications prescribed to treat the Veteran’s service-connected disabilities interfered with his ability to secure and follow a substantially gainful occupation. The examiner initially noted that the Veteran had not reported to VA for a primary care appointment since 2014, and that in a March 2020 telehealth note, the Veteran had explained that in the six-year interim, he was “shopping around for a doctor” who would give him his pain pills. When asked what medication he was referring to, the Veteran reported he was taking codeine/acetaminophen, naproxen, cyclobenzaprine, oxycontin, and medical marijuana. Regarding the oxycontin, the Veteran reported he was taking 2-3 per day and was illicitly buying them from a friend. Nonetheless, the Veteran reported that the aforementioned medications were helping with his bilateral knee, neck, and low back pain, and indicated that his pain was mild as a result. See June 2020 VA Medical Opinion; see also VA Treatment Record received July 2020. After reviewing the claims file, the examiner, Dr. W.O., addressed the Veteran’s contentions that his medications made him very drowsy by noting that oxycontin and medical marijuana were medications that did not cause debilitating drowsiness that would prevent the ability to perform occupational and employment activities. Dr. W.O. also noted that while cyclobenzaprine could cause drowsiness, this could be mitigated by taking it at times that would not interfere with work, such as in the evenings. Furthermore, he held, that the Veteran had not taken cyclobenzaprine recently, and that this medication would primarily be used to treat back pain, which was not service connected. Ultimately, Dr. W.O. opined that the Veteran’s pain was well controlled by his medications without significant side effects. Therefore, he concluded that, “pain is not a persistent issue and therefore would likely have no significant impact on performing occupational and employment activities.” See June 2020 VA Medical Opinion. In November 2020, pursuant to the July 2018 remand, the Executive Director of the Compensation Service issued an advisory opinion addressing entitlement to extraschedular TDIU. After reviewing the evidence of record, the Executive Director opined that the evidence did not show the Veteran’s service-connected conditions to be totally disabling, and therefore entitlement to extraschedular TDIU benefits was not warranted. In reaching this decision, the Executive Director relied heavily on the March 2018 VA examination and June 2020 medical opinion. Specifically, she acknowledged that the Veteran was limited in his ability to walk, crawl, stand, and climb and thus would be limited in physically demanding forms of employment; however, she also found that the service-connected conditions were not so severely impairing to prohibit all types of employment. She explained that the Veteran’s service-connected conditions and medications would not prevent sedentary forms of occupational and employment activities. See November 2020 VA Memorandum. After reviewing the foregoing, the Board finds that the preponderance of the evidence weighs against finding that the Veteran is unable to obtain and maintain substantially gainful employment. In reaching this determination, the Board finds that the March 2018 VA examination, and June 2020 VA medical opinion are the most probative evidence of record pertaining to the claim. Both are based on a thorough review of the relevant medical history and description of the Veteran’s symptomatology. Moreover, this evidence is probative as to whether the Veteran’s service-connected disabilities, which appear to have impacted his previous work, may prevent other substantially gainful occupations. Thus, while the VA examiner opined (as previously discussed above) that the Veteran retired from his previous job as an electrician in part due to his service-connected bilateral knee condition, the weight of the evidence does not show that the Veteran’s symptomatology is so severe to render him unable to secure or follow any form of substantially gainful employment. Rather, the relevant evidence indicates that pain from the Veteran’s service-connected disabilities is well controlled, and the Veteran can perform non-physically demanding work, which does not require large amounts of walking, crawling, kneeling or standing. Additionally, according to the VA examiner, the medications that the Veteran takes to treat his pain are not of the sort that would render him so drowsy that he would not be able to focus or perform in an occupational setting. In a letter received in December 2020, the Veteran wrote, “anybody or any disabled Veteran, when injured can find sedentary work if they have a brain. Being a electrician is not sedentary work.” See December 2020 Correspondence. The Board acknowledges and is sympathetic to the Veteran’s contention that being an electrician is not sedentary work, and as such he will no longer be able to perform in such a capacity. However, the relevant question is whether the Veteran is capable of securing and following substantially gainful employment, not whether he is able to perform the same job that he had prior to the progression of his service-connected disabilities. In the present case, the evidence supports a finding that, with his educational background and work experience, the Veteran is capable of securing and following substantially gainful employment. In fact, the Veteran reported that in his last few years of employment, prior to his retirement, he was put on “light duty” and did office work because he could no longer perform his duties as an electrician. See Correspondence received December 2020. Thus, although the Veteran’s service-connected disabilities may prevent him from working as an electrician at the Pearl Harbor Shipyard, the evidence nonetheless indicates that he is capable of securing and following substantially gainful employment in a different capacity. (Continued on the next page)   For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for TDIU, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.