Citation Nr: 21014748 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 09-33 629 DATE: March 15, 2021 ORDER Prior to August 21, 2009, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) on an extraschedular basis is denied. FINDING OF FACT Prior to August 21, 2009, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW Prior to August 21, 2009, the criteria for entitlement to a TDIU on an extraschedular basis have not been met. 38 U.S.C. § 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 in the U.S. Army from September 1967 to June 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in December 2012, October 2015, April 2017, and October 2019. The Veteran’s claim of entitlement to a TDIU arose during an appeal for an increased rating for the Veteran’s service-connected degenerative arthritis of the lumbar spine. The Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU Application) in November 2014. In an October 2016 rating decision, the RO granted entitlement to a TDIU, effective November 12, 2014. In the October 2019 Board decision, the Board granted entitlement to a TDIU for the period beginning August 21, 2009, and remanded the issue to submit the case to the Director of Compensation Service for extraschedular consideration of TDIU for the period prior to August 21, 2009. The Director of Compensation Service issued an Advisory Opinion for extraschedular consideration of TDIU in August 2020. Therefore, the Board finds that the October 2019 remand directive was substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has been returned to the Board at this time for further appellate review. Entitlement to a TDIU prior to August 21, 2009. The Veteran contends that he is entitled to a TDIU prior to August 21, 2009. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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 v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities”. Moreover, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As mentioned earlier, the issue on appeal arose out of an increased rating claim for the Veteran’s service-connected degenerative arthritis of the lumbar spine. The Veteran first submitted the relevant claim on January 31, 2008. The Veteran has already been granted entitlement to a TDIU for the period beginning August 21, 2009. Thus, the current discussion will focus on the period from January 31, 2008, to August 21, 2009. For the period prior to August 21, 2009, service connection has been established for degenerative arthritis of the lumbar spine and ischemic heart disease. The Veteran’s degenerative arthritis of the lumbar spine is evaluated as 20 percent disabling, effective January 31, 2008, and 40 percent disabling, effective December 10, 2008. The Veteran’s ischemic heart disease is evaluated as 10 percent disabling, effective December 15, 2008. Based on the foregoing, the Veteran’s overall combined disability evaluation is 20 percent for the period prior to December 10, 2008. From December 10, 2008, to December 15, 2008, the Veteran’s overall combined disability evaluation is 40 percent, and from December 15, 2008, to August 21, 2009, the Veteran’s overall combined disability evaluation is 50 percent. Prior to August 21, 2009, the Veteran did not have a single service-connected disability rated at 60 percent or more. Additionally, although his degenerative arthritis of the lumbar spine is rated as 40 percent disabling beginning on December 10, 2008, he did not have a combined disability rating of 70 percent or more. Thus, prior to August 21, 2009, the Veteran does not meet the schedular threshold for consideration of a TDIU. In a case such as this, if it is shown that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation, the claim may be submitted to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). As noted earlier, the case was referred to the Director of Compensation Service, who issued an advisory opinion in August 2020. In this case, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities precluded him from participating in substantially gainful employment during the period on appeal prior to August 21, 2009. As such, the Veteran is not entitled to a TDIU prior to August 21, 2009. In the Veteran’s November 2014 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU Application), the Veteran stated that his back disability and heart disability prevent him from securing or following any substantially gainful occupation. He stated that his disability affected full-time employment in 1980. He reported that he last worked full-time on July 7, 2007, and he stated such was also the date that he became too disabled to work. The most he had ever earned in a year was $62,000.00 in 2007 when he worked in financial services. He reported that, in his last job, he was self-employed doing insurance work and selling cleaning products. In that position, he worked 15 hours a week from 2007 to 2014. He lost 20 hours a week due to illness. His highest gross earnings per month in that position was $1,200.00. His total earned income for the past 12 months was $27,600.00. He did not leave his last job because of his disability, and he has not tried to obtain employment since he became too disabled to work. He has a bachelor’s degree and a master’s degree in education. He also has advanced insurance licenses. He noted that he completed CE training to retain his insurance licenses. He has not had any other education or training since he became too disabled to work. He stated that his self-employment business is too dependent on his driving, and he is not able to sit any length of time or stand to make any presentations. In a February 2014 statement, the Veteran reported that, in his self-employment, he drove his RV to RV parks throughout the US to RV rallies to sell cleaning products for recreational vehicles. He also demonstrated how to clean with the products. In that position, he worked 15 to 25 hours per week. He lost 12 to 15 hours a week due to service-connected disabilities. His earnings in the last 12 months of self-employment were $2,480.00. At a January 2010 VA examination for the Veteran’s mental disorders, the Veteran reported that he had completed a degree in teaching, and he had a master’s degree in educational administration. The Veteran had been a teacher for eight years, but poor pay drove him to work in insurance. He worked in insurance 30 years. He moved to Florida in May 1987; and he worked for Prudential, then for himself, and eventually for USAA. He began doing marketing for services in 2002. He retired in 2007 when his office was closed, and he did not want to move. At the time of the January 2010 examination, he did some insurance consulting work for Horace-Mann for 24 hours a week, and he did substitute teaching for grades K-12 when needed. He stated that he tries to keep busy; though he could not do chores around the house due to his back. The Veteran noted that, at his part time job, he is able to choose his own hours. He also noted that he would like to get in the RV and just keep going, but his wife is a nester and would not leave. A May 2007 private treatment record noted that the Veteran had recently retired from the insurance industry, but he will be teaching. In a February 2008 VA Primary Care E&M Note, the Veteran noted that he was retired from his financial job with USAA, and his job had involved some ladder or shaft climbing. At a December 2008 Rheumatology Consult, the Veteran stated that he was not working because of back pain. At a March 2010 VA examination for his joints, the Veteran reported that he had worked as an insurance salesman, but he was not currently employed. He stated that he retired in 2007 for medical reasons related to his back. At a January 2013 VA examination for his back, the Veteran reported that he had worked in insurance for USAA from 2000 to 2007. In 2007, his job was eliminated; and he was offered a job in Texas, which he declined. Concerning the effects of the Veteran’s degenerative arthritis of the lumbar spine on his employment and function, in a May 2007 private treatment note, the Veteran was reported to exercise regularly on his bike. In a January 2009 treatment note, the Veteran reported having more problems with his back and shoulder; and as a consequence, he had not been riding his bike as much. He was bicycling between 5 and 10 miles at a time. In a February 2008 VA Primary Care E&M Note, the Veteran reported lower back spasms radiating to the left and right side, as well as decreased range of motion in his back. He stated that he could not bend down. He rode a bicycle but could not take the jarring. He was down to riding 5 miles due to shoulder and back pain. The examiner gave an assessment of chronic low back pain and sacroiliac dysfunction. In a Primary Care Nursing Note from the same day, the Veteran rated his back and shoulder pain as 6 out of 10, and he described the pain as constant, aching, shooting, tightness, and burning. He stated he had shortness of breath upon exertion. In a February 2008 Physical Therapy Consult, the Veteran described his pain like a dull toothache. He rated his pain as 5 or 6 out of 10. He stated that his pain was exacerbated by sitting for more than 20 minutes, bicycling for about 5 or 6 miles, or bending or standing for more than 15 to 20 minutes. He stated that his pain was worse in the morning. In a February 2008 Pain Consult, the Veteran complained of constant dull, burning, and aching pain in the lumbar spine. Aggravating factors included prolonged standing, sitting, walking, bending, and household activities. At a March 2008 VA examination for the back, the VA diagnosed degenerative arthritis of the lumbar spine with decreased range of motion. The Veteran reported daily pain that was dull with occasional sharpness; and he rated his pain as 3 out of 10. He also reported stiffness and weakness. The Veteran walked without the use of an assistive device, and he could walk a mile. He reported that he was intermittently unsteady, but he rarely fell. His disability had a mild effect on recreational activities. The examiner found that the Veteran’s back disability did not affect his occupation. At the time of this examination, he had not worked for a year for non-back related reasons, and he was about to start a new job. At the March 2008 VA examination, the Veteran had flexion range of motion (ROM) of 45 degrees; and his extension, right and left lateral flexion, and right and left lateral extension ROM were all normal. There was no change in ROM with repetition. Pain began at flexion ROM at 30 degrees, extension ROM at 20 degrees, and right lateral flexion at 30 degrees. Left lateral flexion and rotation and right lateral rotation had no pain. ROM was otherwise reduced due to pain, fatigue, and lack of endurance. In a May 2009 VA Primary Care E&M Note, the Veteran reported persistent pain in his leg and back. When he took a deep breath, it hurt in his lower back. He stated that the pain had gotten to the point that it was becoming disabling. In a July 2009 private treatment note, the Veteran reported continued significant back pain, which had prevented him from doing much physical activity. In a January 2010 private treatment note, the Veteran reported that he had been restricted in physical activity by increasing back pain, and he was having difficulty doing any kind of recreational activity. In an August 2009 VA Rheumatology Outpatient Note, the Veteran reported constant low back pain that was worse with standing, sitting, and walking. He also stated that he has morning stiffness that lasted three hours and had been worsening. Concerning the effects of the Veteran’s service-connected ischemic heart disease, in a February 2008 VA Primary Care Nursing Note, the Veteran reported having shortness of breath on exertion. In a July 2008 private exercise spectrum report, the Veteran had some symptoms of angina and mild throat discomfort, and a stress echocardiogram was abnormal. In a January 2009 private treatment note, the Veteran reported that, if he rode in the 15 to 18 mph range, he would develop some throat tightness. However, he was able to exercise through this, the symptoms resolved, and he was able to carry on. He was bicycling between 5 and 10 miles at a time. Private treatment records from July 2009 and January 2010 noted that the Veteran had not had any chest discomfort. In a March 2010 VA examination for the heart, the Veteran stated that, in 2004, he had sudden onset of chest pain and dyspnea, and he had a stress test that resulted in placement of one stent. He also had an angioplasty in 2006. He reported having shortness of breath on moderate exertion and a history of wheezing and dyspnea. He had pain on exertion such as when mowing the lawn or climbing ladders. The VA examiner found that the Veteran’s ischemic heart disease had no effects on his usual occupation and no effects on his usual daily activities. The Board has reviewed the balance of the Veteran’s other medical treatment records from the period on appeal prior to August 21, 2009. The findings in the other medical treatment records are substantially similar to those noted in the VA examinations and treatment records described above. The Board acknowledges that, during the period on appeal prior to August 21, 2009, the Veteran exhibited functional difficulties and limitations related to other physical disabilities, such as his shoulder. However, those disabilities were not service-connected during the period at issue. As noted earlier, the effects of non-service-connected disabilities cannot be considered in a TDIU determination. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Additionally, the Board notes that the Veteran has been inconsistent in his reported reason for leaving his last full-time job. At a December 2008 Rheumatology Consult, the Veteran stated that he was not working because of back pain, and at a March 2010 VA examination for his joints, the Veteran stated that he retired in 2007 for medical reasons related to his back. However, in his November 2014 TDIU Application, the Veteran reported that he did not leave his last job because of his disability. At a March 2008 VA examination for his back, he reported that he had not worked for a year for non-back related reasons. At a January 2010 VA examination for mental disorders, the Veteran reported that he retired in 2007 when his office was closed, and he did not want to move. Also, at a January 2013 VA examination for his back, the Veteran reported that, in 2007, his insurance job with USAA was eliminated; and he was offered a job in Texas, which he declined. In weighing credibility, the VA may consider inconsistent statements and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, because the Veteran’s statements concerning the reason he left his last full-time job are not credible, they are not entitled to significant probative weight. In an August 2020 Advisory Opinion concerning extraschedular consideration, the Director of Compensation Service noted that the Veteran was self-employed between 2007 and 2014, and his income in the last 12 months prior to his November 2014 TDIU application was $27,600.00, which is above the poverty threshold for the Veteran and his wife. The Director found that there is no medical evidence showing that the Veteran was unable to work, and the evidence submitted shows that the Veteran was engaged in marginal employment between 2007 and 2014. After giving consideration to all relevant evidence, including but not limited to the Veteran’s education, training, and work history, the Director of Compensation Service determined that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment prior to August 21, 2009. Upon review, the Board finds that, although the Veteran’s service-connected disabilities may have negatively impacted his employability during the period on appeal prior to August 21, 2009, they did not preclude him from securing and maintaining a substantially gainful occupation. The Board acknowledges that the functional impairment associated with the Veteran’s service-connected disabilities included difficulty with bending and with prolonged sitting, standing, and walking. He also exhibited some shortness of breath with exertion. However, the evidence of record indicates that the Veteran has a master’s degree in educational administration as well as licenses related to working in insurance. During the period on appeal prior to August 21, 2009, the Veteran was not precluded from performing work that primarily involved desk work and only required minimal physical exertion; and he was not prevented from participating in occupations that provided or allowed for accommodations for his physical limitations. Likewise, the Veteran was not prevented from performing work that only required minimal bending or that allowed the Veteran to take frequent breaks. The Veteran’s educational and work background is not so limited as to have precluded occupations of the nature described above during the period on appeal. The preponderance of the evidence from the period on appeal prior to August 21, 2009, does not demonstrate that the Veteran’s symptoms from his service-connected disabilities would have prevented him from securing or maintaining gainful employment. Thus, the Board finds the Veteran’s service-connected disabilities did not preclude him from performing the physical and mental acts necessary to secure and maintain a substantially gainful occupation consistent with his educational and occupational background prior to August 21, 2009. Therefore, based on the foregoing, the Board finds that an award of a TDIU is not warranted for the appeal period prior to August 21, 2009. In reaching such a determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal, and his claim of entitlement to a TDIU for the period on appeal prior to August 21, 2009 must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.