Citation Nr: 21013572 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 08-08 862 DATE: March 9, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is denied. Dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran completed high school and a one-year air conditioning and heating maintenance certificate. He had experience as a truck driver and owner of a landscaping business and last worked on a full-time basis on December 1, 2006. 2. At the time of his death, the Veteran’s service-connected disabilities included for a low back strain, rated as 20 percent disabling, tinnitus, rated as 10 percent disabling, and hearing loss, left ear, rated as noncompensable. The combined disability rating was 30 percent; therefore, at the time of his death, the Veteran did not meet the schedular criteria for assignment of a TDIU on a schedular basis. 3. The preponderance of the evidence shows that, prior to his death, the Veteran was not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 4. A total disability rating was not in effect for at least 10 years prior to the Veteran’s death; the Veteran was not rated as totally disabled since separation from active duty and at least 5 years preceding death; and, the Veteran was not a prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. 2. The criteria for DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22, 3.102, 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1960 to January 1964. He died in September 2016. The appellant is his surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2006 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO increased the rating for the service-connected low back strain from noncompensable to 10 percent, effective August 8, 2006. In March 2007, VA received the Veteran’s Notice of Disagreement (NOD). In February 2008, the RO issued a Statement of the Case (SOC). In March 2008, VA received the Veteran’s VA Form 9 appeal to the Board. In an April 2009 rating decision, the RO increased the rating for the service-connected low back strain from 10 percent to 20 percent, effective August 8, 2006. In an October 2010 rating decision, the RO denied a TDIU. In October 2011 the Board remanded the claim for a rating in excess of 20 percent for the service-connected low back strain for further development and adjudicative action. In a December 2013 decision, the Board denied the Veteran’s claim for a disability rating in excess of 20 percent for the service-connected low back strain. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a June 2014 Court Order granting a May 2014 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s December 2013 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. Specifically, the Court concluded that the Board had not offered sufficient reasons and bases for failure to an infer a claim for TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In December 2014, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the JMR. In particular, the Board inferred a claim for a TDIU on an extraschedular basis as part and parcel of the claim for increased rating for the service-connected low back strain and referred the case to the Director, Compensation Service. In September 2015, the Board remanded the case back to the RO for failure to comply with the December 2104 Board remand directives. In September 2015, the Director, Compensation Service completed an administrative review of the claim for a TDIU on an extraschedular basis, and found that an extraschedular TDIU was not warranted in this case. In a December 2015 decision, the Board denied the Veteran’s claim for a TDIU on an extraschedular basis. The Veteran again appealed the decision to the Court. In a June 2016 Court order granting a June 2016 Joint Motion for Remand (JMR), the Court vacated the Board’s December 2015 decision and remanded the case for further development in compliance with the directives specified in the JMR. In November 2016, following the Veteran’s death in September 2016, the Board dismissed the appeal. Thereafter, in July 2017, the appellant was substituted for the Veteran to complete the claim that was pending at the time of his death. In November 2016, she claimed entitlement to DIC under 38 U.S.C. § 1318. In a March 2017 rating decision, the RO denied the claim. In May 2017, VA received the appellant’s NOD. In November 2017, the RO issued a SOC. In November 2017, VA received the appellant’s VA Form 9 appeal to the Board. In December 2017 the Board remanded the claim of entitlement to a TDIU on an extraschedular basis for further development and adjudication. Specifically, the Board again referred the case to the Director, Compensation Service. In April 2018, the Board remanded the claim for DIC under 38 U.S.C. § 1318 as inextricably intertwined with the claim for a TDIU on an extraschedular basis. In November 2019, the Director, Compensation Service completed another advisory opinion regarding the claim for TDIU on an extraschedular basis. In a January 2020 decision the Board for a third time denied the claim for a TDIU on an extraschedular basis. The appellant appealed the decision to the Court. In September 2020 Court Order granting a JMPR, the Court vacated the Board’s January 2020 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. TDIU 1. Entitlement to a TDIU on an extraschedular basis. The appellant continues to aver that the Veteran’s service-connected disabilities made him unable to maintain substantially gainful employment, seeking assignment of a TDIU on an accrued basis effective from August 8, 2006. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining the severity of impairment, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Despite failing to meet the threshold percentage standards set forth under 38 C.F.R. § 4.16(a), the Veteran may nevertheless warrant a TDIU if it is established by the evidence of record that his service-connected disability or disabilities has rendered him unable to secure and follow substantially gainful employment. If there is a possibility of substantiating such a claim, then the case is referred to the Director, Compensation Service for extra-schedular consideration in the first instance. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b). Prior to his death, the Veteran’s service-connected disabilities included a low back strain, ratable as 20 percent disabling, tinnitus, ratable as 10 percent disabling, and hearing loss, left ear, ratable as noncompensable, for a combined disability rating of 30 percent. Therefore, prior to his death, the Veteran did not meet the schedular criteria for a TDIU. However, as discussed above, the case has been already referred to the Director, Compensation Service twice and advisory opinions from September 2015 and November 2019 are of record. Private and VA treatment records reveal nonservice-connected disabilities including morbid obesity, coronary artery disease, congestive heart failure, diabetes mellitus, lower extremity diabetic neuropathy, transient ischemic attack (TIA), and sleep apnea. The Veteran completed high school and a one-year air conditioning and heating maintenance certificate program from a community college. He had experience as a truck driver and landscaper. From 1992 to 2004, he owned and operated a landscaping business. After 2004, the Veteran performed part-time work only. From 2005 to 2006, the Veteran worked as a contractor from 2004 to 2005 for PMX, Inc. See August 2010 VA Form 21-8940. Following part-time work at PMX, Inc. performed driving work for Blackhawk Custom Outfitters and Creative Renovations, Inc. As of July 2014, he was working about 4 hours a week as a self-employed contractor. See July 2014 VA Form 21-8940. It is conceded that his income from work after 2004 was marginal and some of the work was completed in a family-protected environment. Between 2005 and 2010, the Veteran also applied for several open positions in maintenance and as a truck driver but was declined employment. See July 2014 VA Form 21-8940. In 2012 and 2014, he applied for positions in retail and fast food. A December 2006 VA examination for the Veteran’s back strain shows that, at the time of the examination, the Veteran did not use any assistive devices and claimed to be able to walk up to half a mile. Notwithstanding, he stated that he was in “constant” pain with more severe pain in the morning. Spinal range of motion was normal. Subsequent x-rays revealed “mild to moderate” degenerative arthritis of the lumbar spine. See February 2009 x-ray report. In July 2007, the Social Security Administration (SSA) issued a fully favorable determination, finding that the Veteran had been disabled from October 15, 2004; however, an entitlement date of January 1, 2007 because the Veteran performed significant work, as defined by SSA regulations, after the date of onset of disability. The primary diagnosis was “Disorders of the Back – Discogenic & Degenerative” and a secondary diagnosis was “Recurrent Arrhythmias.” The explanation for the determination was based on back pain. Furthermore, SSA records provide additional details regarding the character of the Veteran’s employment. While employed as a truck driver “off and on for the past 35 years,” the Veteran “didn’t have to do any extra lifting and carrying beyond the strength involved in driving the trucks and climbing in and out of them.” During the period in which he ran his own landscaping business, the Veteran performed a combination of physical tasks, such as operating equipment and “occasionally” lifting loads of 100 pounds and “frequently” lifting loads of 20 pounds. He also performed administrative tasks, such as hiring and firing employees, issuing paychecks, taking calls, and completing paperwork. He spent “10-12 hours a week at his desk” and performed much of the administrative work at home. During the “busy” season, he could delegate most physical labor to employees but would perform “all” of the work during the “slow” season. See June 2007 SSA case development sheet. A January 2009 letter from an employer, Blackhawk Custom Outfitters, stated that the Veteran had been employed as a delivery driver “for several years, until a year and a half ago.” The letter confirmed that the Veteran had become unable to perform the work due to “multiple restrictions.” Similarly, a February 2009 letter from Creative Renovations, Inc. stated that the Veteran had become unable to perform “even the smallest of tasks due to all his restrictions” within the last 18 months. At a February 2009 hearing before a decision review officer (DRO), the Veteran reported impairment to standing, squatting, walking (especially on uneven surfaces) and driving. In particular, he indicated that he could only drive short distances before needing to stop because of back pain. During the hearing, the Veteran’s son, who employed the Veteran on a part-time basis after 2004, reported that the work required the Veteran to climb “5 foot to the floorboard” when getting into large trucks and that he had fallen from a truck before. Both the Veteran and his son reported multiple falls. In addition, the Veteran reported drowsiness and loss of balance due to pain medication. A March 2009 VA examination for peripheral nerve conditions noted sacroiliac joint pain and “mild” bilateral lower extremity diabetic neuropathy. An EMG taken following the initial examination was negative for radiculopathy of the lower extremities. In May 2009, VA received the Veteran’s claim for vocational rehabilitation. However, in a January 2010 Veteran Readiness & Employment (VR&E) entitlement determination, VA determined that a vocational goal for the Veteran was not currently feasible. Functional impairments described in the determination included “walking more than across the street, standing more than a 5-10 mins, heavy lifting, climbing, bending, reduced stamina and endurance, reduced tolerance to stressful situations and extreme temperatures; avoid lifting, pushing, reaching, pressing; reduced tolerance for lack of food/rest.” Furthermore, the determination noted that the “veteran is living with knee pain, weakness, limited mobility, some feet numbness; diabetes (DMII), malignant hypertension, hypertensive and valvular heart disease (frequent appointments to cardiology clinic – ICVC), and atrial fibrillation.” Finally, the determination found that the Veteran had a “serious” employment handicap and that “the limitations restrict the type of employment the Veteran may seek or be able to maintain without running the risk of aggravating service-connected disabilities.” January 2010 VR&E entitlement determination. VA audiometric findings from July 2010 revealed an average puretone threshold of 55 decibels in the left ear across the 500, 1000, 2000, 3000, and 4000 Hertz frequencies. Speech recognition in the left ear was 96 percent. Regarding functional impact, the examiner noted that, while the Veteran would have “difficulty understanding speech in most situations, but particularly in the presence of background noise” without proper amplification, “the Veteran will have improved hearing in most situations” with proper amplification. Further, she found that proper amplification would result in lower need to change duty assignments due to hearing impairments. During the examination, the Veteran also endorsed symptoms of tinnitus. An August 2010 letter from a treating nurse, N.G., L.P.N., described numerous falls within the past year, installation of handrails at the Veteran’s work site, shortness of breath, and need to nap where “he was able to be more involved in activities” previously. See August 2010 N.G., L.P.N. letter. Furthermore, an August 2010 letter from PMX excavation reveals that the Veteran could no longer safely perform job specifications including “climbing in/out of Tri-axles, loading heavy equipment, moving, said equipment and relaying job changes to the other employees via the radio,” due to “severe back and hearing problems.” The letter noted that the Veteran had fallen or tripped several times due to inability to maintain his balance. In August 2011, the Veteran’s commercial driver’s license was disqualified. See August 2011 Notice of Medical CDL Disqualification. By the time of a November 2011 VA examination of the Veteran’s low back, the Veteran was using a “walker for balance when he is outdoors.” Forward flexion of the thoracolumbar spine was 75 degrees; extension was to 10 degrees; right lateral flexion was 25 degrees; left lateral flexion was 20 degrees; right lateral rotation was 30 degrees; and left lateral rotation was 25 degrees. There was no objective evidence of painful motion on range of motion testing. Contributing factors of disability included less movement than normal, pain on movement, deformity, and marked abdominal obesity. There was no evidence of radiculopathy. The examiner provided a diagnosis of IVDS but found no evidence of incapacitating episodes. Regarding functional impact, the examiner noted that the Veteran “was no longer able to do lifting” and “can’t drive big trucks and construction equipment.” VA treatment records from February and March 2012 show that the Veteran suffered from hypoglycemic episodes due to his diabetes mellitus and, in February 2012, nearly passed out due to low blood sugar. See move note dated March 14, 2012; nursing outpatient note dated February 1, 2012. His BMI as of March 2012 was 33.1. An October 2014 private opinion from Dr. D.M., M.D., J.D., an orthopedic surgeon, is of record. Based on a telephone interview with the Veteran and review of pertinent records, Dr. D.M. opined that the Veteran was, at least as likely as not, “totally precluded from all types of substantially gainful employment due to his service-connected back symptoms since 2005-2006.” In this regard, Dr. D.M. noted that the Veteran had a limited education and had always performed labor-oriented work, which “did not provide him with transferrable skills to a sedentary type of position.” Notwithstanding, he also found that the Veteran also would not be able to perform a job which involved prolonged sitting due to potential aggravation of his back symptoms. D.M. specifically referenced the Veteran’s work at PMX Excavation (incorrectly transcribed as “TMX”) and noted that the Veteran had become unable to perform his duties, which involved driving to work sites and overseeing employees, due to back pain. The Veteran reported daily pain, and worse pain after walking an 1/8 of a mile, sitting in a hard chair for 20 minutes, or standing in one area for approximately 15 minutes. Based on review of the Veteran’s medical records, Dr. D.M. concluded that the Veteran’s low back pain was “progressive” with a “significant disc protrusion at the L5/S1” but without lumbar radiculopathy. He found that the Veteran’s left lower extremity neuropathy was more likely due to weight gain. At the time of the interview, the Veteran’s weight had decreased to 200 pounds. During a May 2015 VA examination for his back strain, the Veteran reported continuous pain aggravated by “driving, bending, climbing, walking, and twisting.” His treatment regimen included pain shots and pain medication. Regarding range of motion, forward flexion was 70 degrees; extension was to 20 degrees; right lateral flexion was 20 degrees; left lateral flexion was 20 degrees; right lateral rotation was to 20 degrees; and left lateral rotation was to 20 degrees. There was pain on all ranges of motion but no pain on weight-bearing. There was again no evidence of radiculopathy upon examination. Additional factors contributing to disability included interference with sitting, interference with standing, and walking “stooped over,” and “trouble straightening his back.” The Veteran made regular use of a cane and constant use of a walker. He did not report flare-ups. The examiner provided no analysis regarding additional functional loss after repeated use over time due to inability to personally observe the Veteran under such circumstances. The May 2015 examiner provided extensive opinions regarding the impact of the Veteran’s service-connected and nonservice-connected disabilities on his employability. Regarding the impact of the service-connected low back disability, the examiner concluded that “the low back condition would present a moderate impairment for any time of activities that involve heavy lifting, prolonged standing, driving, running, walking, jumping, bending, and twisting.” Furthermore, she suggested that the Veteran “may have difficulty doing truck driving due to his back condition because of the prolonged sitting required without opportunity to stand/change position and also because of the vibration involved with driving.” However, the examiner opined that the low back disability “would not present any impairment for any type of sedentary job such as office work/computer type of job.” The May 2015 examiner also concluded that the Veteran’s coronary artery disease and chronic heart failure would have a “moderate to severe impact on any type of physical work [including] lifting, walking, bending, climbing, running, and jumping due to episodes of [shortness] of breath and fatigue” with “no impact of sedentary employment.” Finally, she opined that the diabetes “may cause the Veteran to experience increased fatigue” and the Veteran’s history of a TIA “may cause [a] moderate impact on any type of physical work due to weakness, fatigue and dizziness.” In a September 2015 advisory opinion, the Director, Compensation Service opined that the “totality of the evidence does not show that the Veteran’s service-connected conditions render him unable to perform substantially gainful employment.” He described the objective findings of the May 2015 examiner and noted that the examiner concluded that the Veteran could still perform sedentary employment. Moreover, the Director noted that neither letter submitted by the Veteran’s former employers specifically identified any restrictions specifically due to the Veteran’s back symptoms. However, this finding is apparently in reference to the Blackhawk and Creative Renovations, Inc. letters and not the PMX letter. Finally, he noted that the January 2010 VR&E determination did not describe any impairment due to back symptoms. In September 2016, the Veteran died as a result of ventricular fibrillation cardiac arrest. See September 2016 death certificate. He had prior diagnoses of coronary artery disease and congestive heart failure. In September 2017, VA received a posthumous vocational assessment report from K.P., M.A., A.D.M.S. K.P. reviewed the claims file, including the Veteran’s medical records and lay statements, and also interviewed the Veteran’s spouse. During the interview, the Veteran’s spouse reported that the Veteran’s “back condition limited his ability to stand, sit, or walk for prolonged periods of time.” Specifically, she described inability to stand for “more than a few minutes” and use of a cane or walker “to balance and ambulate.” She indicated that the Veteran relied on a motorized scooter when shopping at the grocery store and had difficulty getting in and out of vehicles. The Veteran’s spouse also noted that the Veteran would take naps throughout the day due to fatigue; she attributed this to his pain medication. Regarding his hearing impairment, she reported that the Veteran had told her that “he genuinely was unable to hear what she was saying much of the time” and had complained of inability to focus on conversation due to “constant ringing in his ears.” After describing the Veteran’s employment history, K.P. opined that “the records in the claims file are consistent with an individual who is disabled and unable to secure and follow substantially gainful employment.” Based on review of the Dictionary of Occupational Titles and her experience in vocational rehabilitation, she opined that the Veteran would be unable to perform sedentary as well physical work. She emphasized the Veteran’s walking difficulties, falls due to back pain, use of cane for balance, inability to carry weights in excess of 5 to 10 pounds, and difficulty hearing and understanding speech in most situations without properly fit amplification. Furthermore, K.P. noted that inability to remain seated for long periods of time and also could not stand or walk “for the amount of time required to complete an 8-hour day in a sedentary occupation.” Furthermore, she concluded that the Veteran’s fatigue would cause him to be unable to concentrate for a full 8-hour day. In November 2019, another advisory opinion from the Director, Compensation Service was associated with the claim file. The Director first noted that the Veteran completed vocational rehabilitation successfully. As noted above, however, VA instead concluded that a vocational goal for the Veteran was not feasible. Nevertheless, the Director also observed that, based on VR&E records, “almost all of his employment impairment was due to non-service connected disabilities such as diabetes neuropathy, knee pain, feet pain and hypertensive heart disease.” Based on the foregoing, the preponderance of the evidence shows that a TDIU on an extraschedular basis is not warranted. In this regard, the evidence shows that the Veteran was not precluded from all substantially gainful employment by his service-connected disabilities. Based on the evidence summarized above, the Veteran’s service-connected back disability did cause functional impairment to walking, standing, sitting, squatting, and lifting and these impairments impacted the Veteran’s ability to perform work as a truck driver and self-employed landscaper. However, the Veteran’s 20 percent disability rating for his service-connected back disability and 10 percent rating for tinnitus recognizes some commercial impairment resulting from the disabilities. The preponderance of the evidence shows that the Veteran’s inability to maintain gainful employment was not a result of his service-connected disabilities. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person’s ordinary activity (see 38 C.F.R. § 4.10), and such has been done here. The findings, comments and opinions of the VA examiners have been considered as pertinent evidence, along with the Veteran’s competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. At the outset, as noted in the September 2020 Court JMPR, it is conceded that the Veteran’s employment background primarily consists of physical, rather than sedentary labor; however, as discussed below, the Veteran’s employment as a self-employed landscaping business owner did involve sedentary labor. For purposes of defining sedentary labor, this decision adopts the definition suggested by the appellant’s representative (from the Dictionary of Occupational Titles, or DOT). The DOT defines sedentary labor to require “exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time.” In this regard, it is noted that, while self-employed as a landscaper, the Veteran performed administrative tasks such as hiring and firing employees, issuing paychecks, taking phone calls, and completing paperwork; these tasks fall well within the definition of sedentary employment provided above. Therefore, although the Veteran did not have a college degree, his employment history shows that he was not necessarily precluded from all sedentary employment by virtue of his lack of education. See Pederson v. McDonald, 27 Vet. App. 276, 288 (2015). Turning to the medical evidence, regarding Dr. D.M.’s October 2014 opinion, it is based on full review of the claims file and an interview with the Veteran. However, the opinion largely fails to articulate a rationale for how the Veteran’s back symptoms impacted his ability to perform physical labor. Rather, the opinion merely summarizes various evidence in this regard. Notwithstanding, the opinion regarding the Veteran’s ability to perform sedentary employment is accompanied by a brief rationale and is therefore afforded some probative value. Regarding K.P.’s September 2017 opinion, it is also based on full review of the claims file and an interview with the Veteran’s spouse. Additionally, the opinion articulates specifically how, in terms of functional impact, the Veteran’s back symptoms interfered with employability; therefore, it is afforded some probative value as to this point. However, the opinion also assumes that the Veteran’s pain medication was the cause of fatigue that affected the Veteran’s prospects in both physical and sedentary work. In this regard, the Veteran’s spouse, whose reports are pivotal in the opinion, is not competent (in the absence of evidence showing that she is a medical professional) to opine that the Veteran’s pain medication caused his fatigue. Additionally, K.P., whose curriculum vitae reveals that she is not a medical professional, is also not competent to opine on the matter. However, as discussed later on, the May 2015 examiner concluded that the Veteran’s coronary artery disease with congestive heart failure and history of TIA resulted in weakness and fatigue. See May 2015 VA examination report. Additionally, there is medical evidence showing significant fatigue due to hypoglycemic episodes caused by diabetes mellitus. As such, K.P.’s attribution of the Veteran’s fatigue solely to his pain medication is unsupported by the competent medical evidence of record. Turning to the VA examinations of record, the December 2006 examination noted less significant functional impairments; at the time of the examination, the Veteran was still able to walk up to half a mile and did not require use of assistive devices. However, the November 2011 examiner’s conclusion that the Veteran was functionally prohibited from driving large trucks or operating construction equipment is afforded some, but not high, probative value; in this regard, the November 2011 examiner also factored in the Veteran’s non-service-connected obesity into the analysis, noting that the Veteran’s morbid obesity was a contributing factor of disability. Finally, regarding the May 2015 examination and opinions, the examiner’s rationale for inability to estimate additional functional loss after repeated use over time due to inability to personally observe the Veteran renders the examination results unreliable for estimating the severity of the Veteran’s back disability in terms of loss of range of motion. Nevertheless, the examiner’s opinion regarding the functional impact to the Veteran’s back disability on his ability to perform physical and sedentary employment is based on review of the record and a reasoned analysis of the impact of the Veteran’s back symptoms, and is therefore afforded significant probative value; in particular, the examiner noted that the Veteran had residual ability to perform office work, which, as shown above, falls within the definition of sedentary employment and which he completed regularly while self-employed as a landscaping business owner. The examiner also provided opinions regarding the functional impact of the Veteran’s non-service-connected disabilities; however, given that entitlement to a TDIU must be considered without regard to non-service-connected disabilities, these opinions warrant no further discussion. Regarding the claimed impairment from the service-connected hearing loss and tinnitus, the July 2010 audiological examiner opined that the problems associated with the Veteran’s left ear hearing loss would be largely resolved through use of proper amplification. In this regard, VA treatment records show that the Veteran utilized hearing aids. Furthermore, while the Veteran and his spouse reported that the Veteran experienced tinnitus and that the tinnitus interfered with the Veteran’s ability to concentrate during conversations, there is no suggestion anywhere in the record that the tinnitus actually interfered with the Veteran’s employment. Notably, no adverse functional impact from the tinnitus was mentioned by the July 2010 audiological opinion or any other opinion of record other than the opinion from September 2017 opinion from K.M. Turning to the September 2015 and November 2019 advisory opinions from the Director, Compensation Service, the Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, following a determination by the Director, Compensation Service, the Board may then review the decision on a de novo basis. See generally Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In the instant case, the matter of extraschedular consideration has already been referred to the Director. The Director’s conclusion in the September 2015 advisory opinion regarding the Veteran’s ability to perform sedentary work, in light of the Veteran’s employment history involving at least some sedentary labor is afforded some probative value. The Director also observed that the January and February 2009 letters from Blackhawk and Creative Renovations, Inc. failed to identify any specific impairment due to back symptoms; however, there is no indication that the Director considered the PMX letter, which specifically identifies job-related impairment allegedly due to back symptoms and hearing loss. However, he correctly noted that the January 2010 VR&E feasibility determination provided no indication of any impairment due to the Veteran’s back disability. In light of the above, as the Director failed to consider some relevant evidence of record, the September 2015 advisory opinion is neutral as to probative value. Finally, regarding the November 2019 advisory opinion, it is largely devoid of a rationale and makes the incorrect assumption that the Veteran successfully completed vocational rehabilitation training; accordingly, it is afforded no probative value. Regarding the July 2007 SSA fully favorable determination, although VA is required to consider the SSA’s findings, it is not bound by the SSA’s conclusions on disability and/or unemployability. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In this regard, it is acknowledged that the SSA determined the Veteran to be disabled based primary due to his back disability and secondarily due to arrythmias. However, the preponderance of the evidence shows that the Veteran was not precluded from all substantially gainful employment due to his service-connected disabilities. Accordingly, the Board concludes that the most probative evidence of record demonstrates that the Veteran’s service-connected low back disability, left ear hearing loss, and tinnitus did not preclude him from following a substantially gainful occupation. In this regard, the evidence shows that the Veteran could still perform office work consistent with his employment history, such as hiring and firing of employees, issuing paychecks, taking phone calls, and completing paperwork. Furthermore, the evidence of record suggests that the Veteran may have been able perform in a job that required a flexible combination of sitting and standing. With regard to the mental component of unemployability, there is no evidence that the Veteran’s service-connected disabilities caused significant mental limitations. In this regard, there is no competent evidence of record linking the Veteran’s pain medication to fatigue, and fatigue is noted extensively in the record as being due to other non-service-connected conditions. As such, the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DIC 2. Entitlement to DIC benefits under 38 U.S.C. § 1318. Under 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected. A “deceased veteran” for purposes of this provision is a veteran who dies not as the result of the veteran’s own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay) was not in receipt of compensation but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. For the benefits to be awarded to an appellant, a veteran’s service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the veteran’s separation from service; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former POW who died after September 30, 1999. The total disability rating may be schedular or based on unemployability. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(c). Under 38 C.F.R. § 3.22, DIC benefits may not be awarded based on “hypothetical entitlement” for 10 years preceding the veteran’s death, no matter when the claim was filed. See, e.g., Moffit v. McDonald, 776 F.3d 1359 (Fed. Cir. 2015). In this case, DIC benefits are not warranted. At the time of his death in September 2016, the Veteran’s service-connected disabilities were a low back strain, ratable as 20 percent disabling, tinnitus, ratable as 10 percent disabling, and left ear hearing loss, ratable as noncompensable (all from August 8, 2006). As such, the Veteran was not continuously rated as totally disabled for 10 years prior to his death. Additionally, the Veteran was never a POW. As such, DIC benefits under 38 U.S.C. § 1318 must be denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.