Citation Nr: 21013074 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-53 683 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the competent and probative evidence of record does not demonstrate that the Veteran was unable to obtain or maintain employment solely due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2009 to December 2012. He appealed a May 2019 Board of Veterans’ Appeals (Board) decision denying entitlement to TDIU. In July 2020, pursuant to a pursuant to a Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court) vacated and remanded the May 2019 Board decision. This claim is now back before the Board. Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran contends his service-connected depressive disorder associated with lumbosacral strain, lumbar spine disability with radiculopathy, and cervical spine disability with radiculopathy render him unable to obtain and maintain a substantially gainful occupation. See September 2016 VA Form 21-8940. The Veteran has met the 38 C.F.R. § 4.16(a) threshold requirement for entitlement to TDIU on a schedular basis as his combined disability rating is 90 percent and his depressive disorder is rated at 70 percent disabling throughout the appeal period. Therefore, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to these service-connected disabilities. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the Veteran’s occupational 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. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). To determine whether TDIU is warranted, the Board must conduct a holistic and individualized assessment of the veteran. See Withers v. Wilkie, 30 Vet. App. 139, 142 (2018). Ultimately, the responsibility for making a TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). Prior to the Veteran’s service, the record reflects he completed high school and worked for six months as a Dunkin Donuts cashier. See August 2015 VA Vocational Rehabilitation and Employment (VRE) records. The Veteran served in the Marines from February 2009 to December 2012 with military occupational specialties (MOSs) of aircraft ordnance technician and a helicopter specialist. See DD Form 214. After service, the Veteran was a landscaping supervisor for 6 months; the record reflects he left this position due to back pain and the decision to enroll in college full-time. See August 2015 VRE records. Overall, the Veteran completed three years of college and reported he had to quit school after moving from Oregon to Georgia in mid-2016 due to financial hardship. See, e.g., December 2016 VA examination report (“due to financial constraints, he was unable to afford the cost of the application process”); June 2017 VRE records (“his transcripts…would not be transferred due to an outstanding balance owed by the Veteran…not able to continue with training due to financial hardship…and mental health and chronic pain issues.”). The record reflects the Veteran last worked from April 2014 to June 2014 as a part-time Walgreens cashier and stocker. See January 2017 VA Form 21-4192. The Veteran noted he “quit the job due to back pain.” See May 2016 VA examination report. The Veteran contends he has the following transferrable skills: leadership, personnel management, the use of Excel and other computer programs, and interpersonal relationships. See August 2015 VRE records. Thus, although the Veteran does not have a strong occupational history, he does have the education and skills to obtain and maintain an occupation in a field similar to that of his military MOS, managerial landscaping position, or any sales or typical labor and office position. Physically, the Veteran has severe back pain and stiffness with heavy lifting, bending, and climbing stairs that is exacerbated with repetition, prolonged walking and sitting. See, e.g., September 2014, December 2016, and December 2018 VA examinations. For his lumbar spine disability, the Veteran reported flare-ups so severe they “stop everything” and the September 2014 VA examiner estimated additional functional loss due to pain, moderate weakness, fatigability, and incoordination resulted in forward flexion limited to 40 degrees during flare-ups and with repeated use over time. See September 2014 VA examination report. His bilateral lower extremity radiculopathy has daily weakness and pain that flares-up with “tingling and numbness in the feet…once or twice a month.” Id. Regarding the cervical spine, the Veteran reported a “kink” with “occasional right upper extremity pain” that occurs “once a month or every other month.” See September 2014 VA examination report. The Veteran did not report suffering any functional loss at a December 2016 VA examination, but said he “sometimes” has neck pain and spasms and pain were noted on the examination. A December 2018 VA examiner and the Veteran noted the neck pain and stiffness resulted in limited range of motion and difficulty with heavy lifting. During flare-ups and with repeated use over time, his cervical spine had functional loss due to pain and lack of endurance. See December 2018 VA examination report. A January 2017 VA opinion noted the Veteran was unable to perform heavy labor jobs. As such, the Board finds the Veteran’s service-connected physical disabilities prevent him from maintaining any occupation in any labor field, including his previous landscaping position, provided it required physical labor. His physical limitation also restrict him from employment in a sales position that would require him to stand for extended periods and move heavy objects, such as his previous cashier positions. However, the Veteran completed three years of college, and sat through classes and examinations. He also noted a hobby of his included playing “video games and keeping up with technology” an average of “42 hours a week.” See August 2015 VRE records. This means that while the Veteran’s service-connected physical disabilities prohibit him from standing or sitting “for too long” his physical disabilities do not prohibit him from maintaining an occupation at a typical desk job as he can sit and play video games, in total, for longer than the average work week, and sit through college lectures and examinations. Mentally, the Veteran is service connected for other specified depressive disorder associated with lumbosacral strain. He stated his depressive disorder symptoms amplified with increased back pain, which resulted in a depressed mood, lethargy, difficulties with concentration, chronic sleep impairment, lack of motivation and reduced social interaction, especially during flare-ups. See May 2016 and December 2016 VA examination reports. After a December 2016 VA psychiatric examination, the VA examiner checked the box that the Veteran’s psychiatric symptoms included near-continuous panic or depression affecting his ability to effectively function; however, the Board finds near-continuous panic or depression affecting independent, appropriate, or effective function is not reflected in the record or the December 2016 VA examination itself. For instance, while the Veteran reported it was “extremely difficult” to work and take care of responsibilities due to his depression symptoms in October 2016, he more frequently denied that his depressive symptoms effected his ability to “work and take care of things at home or get along with other people.” See, e.g., October 2017 and January 2018 VA treatment records. At the May 2016 VA psychiatric examination, the Veteran “indicated having periods of depression about 1 to 2 times a month” when his back pain increases. Further, in July 2018, the Veteran reported to not suffer from any depressive symptoms. See July 2018 VA treatment records. Thus, the lay and medical evidence of record weighs against the December 2016 VA examiner’s “checked box” finding that the Veteran has near-continuous panic or depression affecting his function. As such, the Board finds the Veteran’s depression symptoms more closely result in disturbances of motivation and mood that generally do not affect independent, appropriate, or effective function. A VA psychologist opined the Veteran was significantly impaired in finding and maintaining an occupation based on “sitting for extended periods of time” or “physical or stamina” requirements “primarily due to [his] medical condition with back and significant chronic pain.” See January 2017 VA opinion. She went on to state the Veteran “may also experience mild to moderate difficulties associated with types of employment requiring customer service or high stress or high demands for quick turnover response.” Id. The VA psychologists use of the word “may” is equivocal language that holds little probative value; however, the Board will still weigh the opinion with the evidence of record. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009). In December 2016, this VA psychologist examined the Veteran and concluded his psychiatric disorder resulted in occupational and social impairment with “the occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” but that the Veteran was “generally functioning satisfactorily.” See December 2106 VA examination report. She noted the Veteran had difficulty adapting to stressful circumstances, which could include fast-paced customer service and quick turnover positions. Based on the medical and lay evidence of record, the Board agrees the Veteran was generally functioning satisfactorily with the occasional decrease in work efficiency. The Veteran’s depressive disorder did not prevent the Veteran from securing and maintaining employment. The Veteran enrolled in the VA VRE program in July 2015. During that time, the Veteran stated his barriers to obtaining a “satisfactory job” were related to his back disabilities and right knee pain; he did not mention any psychiatric limitations. See July 2015 VRE records (“cannot stand for too long…sit for too long. It is painful to pick up a lot of weight and carry it around.”). In October 2015, the Veteran reported he was comfortable on his college campus, had “no needs” for his disabilities, and was “excited about being a student again.” See October 2015 VRE records. In February 2016, the Veteran was attending college full-time and he again reported “no problems with his health,” noting he would also “check…about [part-time] work-study” during the spring term. See February 2016 VRE records. Additionally, the Veteran reported that “technically” his medical needs were being met in August 2015. See August 2015 VRE records. Thus, the record reflects the Veteran’s psychiatric symptoms did not interfere with the demands of attending college full-time, despite any mild to moderate difficulties his symptoms may have created. In fact, the record reflects the Veteran was interested in attending school and working part-time. VA VRE records noted the Veteran’s service-connected disabilities significantly impaired his ability to secure suitable employment, “in positions such as sales, construction, and landscape management,” positions based on his minimal job experience. See August 2015 VRE records. At the time of this August 2015 VRE assessment, the Veteran was not yet service connected for an acquired psychiatric disorder. The VRE assessment concluded the Veteran was unable to work in the “labor market” but did not address other employment fields for which the Veteran may be capable of working. Id. For instance, the Veteran entered the VA VRE program with the desire to become a “youth counselor” or work in the “human services field.” See August 2015 VRE records. Alternatively, he expressed a desire to obtain a degree in Psychology and then attend law school. Id. For these fields, the vocational clinician concluded the Veteran needed a bachelor’s degree and he was admitted into the program to obtain this goal. However, as noted above, the Veteran has the education and skill to obtain a typical office job, which does not require a bachelor’s degree. Overall, the record reflects the Veteran’s service-connected physical disabilities prevent him from obtaining a job in a labor or sales field that requires prolonged standing, bending, or lifting. His service-connected depressive disorder has symptoms of depressed mood, chronic sleep impairment, lack of concentration, disturbances to motivation and mood, and difficulty adapting to stressful circumstances and establishing and maintaining relationships, which may cause mild to moderate impairment in a fast-paced occupation, such as a busy customer-service position; however, the record reflects the Veteran has the education, physical, and mental ability to obtain and maintain an occupation in a typical office job. The Board has considered the Veteran’s contentions and the entire evidence of record; his current service-connected disabilities do not preclude him from substantially gainful employment. The Veteran’s service-connected physical and mental disabilities are undoubtedly significant. He contends he is “not capable of work, including sedentary work, as [was] explained by [his] examination and treating doctor.” See October 2017 VA Form 9. However, the examination findings, noted above, do not support this contention. See, e.g., January 2017 VA opinion (“unable to perform heavy labor jobs but is physical able to work… office-based…jobs.”). Further, VA treatment records do not support the Veteran’s statement that his treating doctor found him “not capable of work.” The schedular disability rating criteria are intended to compensate, as far as can practicably be determined, the average impairments of earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 3.321(a), 3.340, 4.1; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Therefore, to the extent the Veteran’s service-connected physical disabilities and depressive disorder caused impairment to the Veteran’s earning capacity as a result of exacerbations or illness, he has already been compensated for such impairment by his combined 90 percent rating. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to TDIU; the benefit-of-the-doubt doctrine does not apply and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.