Citation Nr: 21013588 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-11 329 DATE: March 9, 2021 ORDER Entitlement to an extraschedular total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to May 31, 2016 is denied. Entitlement to a schedular TDIU rating from May 31, 2016 is denied. FINDINGS OF FACT 1. Prior to May 31, 2016, the Veteran’s service-connected disabilities do not meet the schedular criteria for consideration for TDIU, and the preponderance of the evidence does not suggest that his service-connected disabilities rendered him unable to secure and follow substantially gainful employment. 2. From May 31, 2016, the preponderance of the evidence does not demonstrate that the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular TDIU prior to May 31, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for entitlement to a schedular TDIU rating from May 31, 2016 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 FINDINGS AND CONCLUSIONS The Veteran had active military service from November 2006 to April 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a VA Regional Office (RO). In December 2019, the Board remanded the claims for schedular and extraschedular individual unemployability. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. TDIU 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. However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned on an extraschedular basis by Director when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant TDIU in the first instance under this regulation, it must still determine whether a remand for referral to Director is so warranted for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In determining whether TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran can secure or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 1. Entitlement to an extraschedular TDIU prior to May 31, 2016 The Veteran asserts that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to May 31, 2016. During this period, the Veteran had a combined disability evaluation of 40 percent from April 30, 2009 and 50 percent from January 28, 2013 to May 31, 2016. The Veteran was service connected for the following disabilities from April 30, 2009: spinal stenosis with degenerative disc disease (DDD) rated as 20 percent disabling until May 31, 2016; left ankle tendinosis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling. Beginning January 28, 2013, the Veteran was service connected for left lower extremity radiculopathy of the sciatic nerve and femoral nerve, with each disability being rated as 10 percent disabling. From May 31, 2016 to December 1, 2016, the Veteran is assigned a temporary total evaluation under 38 C.F.R. § 4.30. During the Veteran’s November 2009 VA examination for hearing loss and tinnitus and the contemporaneous VA examination for general medical conditions, he reported being unemployed at the time. The VA examiner found that the Veteran’s tinnitus would have significant effect on his occupational activities as it would interfere with his ability to hear. The VA examiner found evidence of pain and limitation of motion in the Veteran’s back and left ankle. The Veteran also filed claims for service connection for bilateral hip and knee and right ankle conditions; however, these conditions were denied in a June 2010 rating decision. In an April 2012 lay statement, the Veteran asserted that he had been told that he could no longer perform the type of work he had previously performed due to his lower back disability. During the Veteran’s September 2012 VA examination for back conditions, the VA examiner stated that a note had been placed in his medical records by his primary care physician that indicated the Veteran was precluded from moderate duty employment such as welding, firefighting, police work, aircraft maintenance, and auto-mechanic work. During the Veteran’s March 2014 Board hearing, the Veteran testified that his back condition had worsened. He stated that he had a degree in criminal justice with a minor in auto mechanics. His military occupational specialty (MOS) in the Marine Corps was aircraft mechanic, and he stated he primarily had experience and training in hands-on, physical labor. He stated that bending over caused pain, and he avoided activities like walking, using stairs, and physically strenuous actions. His father needed to assist him with getting out of bed when his back pain flared up. In a January 2016 statement in support of his claim, the Veteran asserted that he had been told by another employee that his company was looking for a reason to fire him because his service-connected back disability. He also asserted that he had to quit two other jobs because physical labor and standing for extended periods caused his back too much pain. In the December 2015 application for individual unemployability, received in January 2016, the Veteran stated that his degenerative joint disease prevented him from securing or following a substantially gainful occupation, and that it had prevented him from doing so since April 2009. The Veteran stated that he had worked at a security company for 20 hours per week from June 2009 to June 2014, at an automotive service’s station for 40 hours per week from June to November 2014, and as a truck driver from April to November 2015. The Veteran stated that his back condition had forced him to either quit or be fired. In the October 2020 administrative decision, the Director of Compensation Service stated that the Veteran was noted to last work in November 2015 as a truck driver and that his application for Social Security was denied. The Director stated that the medical evidence of record showed the Veteran still maintained an active lifestyle during this time and that he could perform light physical labor and sedentary work. The Board has carefully considered the Veteran’s statements regarding the effects of his disability on his employability. Although the Veteran experienced difficulty working, the evidence of record does not indicate that he was precluded from obtaining or maintaining substantially gainful employment due to his service-connected disability. As discussed above, the impairment which the Veteran experienced is partially from nonservice-connected disabilities. The Veteran was able to work fulltime in 2014 and 2015, and while his work experience and training are primarily in hands-on physical work, he holds a degree in criminal justice, and there is no indication that his service-connected disabilities prevented him from performing sedentary work. The record does not support a finding that the Veteran was unable to perform the mental and/or physical requirements necessary for employment, nor does the evidence show that the Veteran’s disability presented unique challenges that could not be contemplated. Therefore, entitlement to TDIU on an extraschedular basis is denied. 2. Entitlement to a schedular TDIU rating from May 31, 2016 For the period from December 1, 2016, following the noted section 4.30 rating, the Veteran is in receipt of a 70 percent combined evaluation, with the following individual disabilities: spinal stenosis, DDD, rated as 40 percent disabling; left ankle tendinosis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left lower extremity radiculopathy of the sciatic and femoral nerves, each rated as 10 percent disabling; right lower extremity radiculopathy of the sciatic and femoral nerves, each rated as 10 percent disabling; and a residual surgical scar on the back of the torso, rated as noncompensable (zero percent disabling). He therefore meets the schedular requirements for consideration for entitlement to TDIU for this period. During the Veteran’s November 2016 VA examination for back conditions, the VA examiner found that he was positive for degenerative arthritis of the spine, IVDS, and muscle spasms. The Veteran’s symptoms included moderate radiculopathy of both extremities, periods of prescribed bedrest due to IVDS, pain, and limitation of motion. The examiner found that the Veteran’s conditions affected his ability to work, as he needed periods of bedrest and needed to take pain medication and muscle relaxers. Additionally, the Veteran reported dizziness when he shifted from a lying to sitting position. The Veteran also reported being unable to get out of bed without assistance and stated that he could not bend over, sit, or stand for prolonged periods. March 2017 VA treatment records indicate that the Veteran desired to be declared unable to work due to his back problems; however, September 2018 VA treatment records reflect the Veteran stating that he could only come to appointments on Friday morning because of his job. In January 2020, VA sent a notification letter to the Veteran with a request that he provide updated employment information in a VA Form 21-4192 and VA Form 21-8940. The Veteran never sent in these forms or any form of updated information. The Board finds that the preponderance of the evidence is against the Veteran’s claim for TDIU. The Board acknowledges the pain and limitations imposed by his service-connected disabilities, as well as the fact that the Veteran’s experience and training were primarily in hands-on, physical labor such as mechanical labor. Conversely, there is no evidence that the Veteran is prevented from securing or following a sedentary occupation due to his service-connected disabilities, and the Veteran does hold a college degree in criminal justice. Additionally, the Veteran’s VA treatment records indicate that he has been working during the period after December 1, 2016. As the Veteran indicated that he could only come in on Friday mornings due to his job, this suggests the possibility that he held a full-time job. The Board requested updated employment information, and, in the absence of that information, must consider the evidence of record as it stands. Based on these facts, the preponderance of the evidence is against finding his service-connected disabilities are of such severity 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); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.