Citation Nr: 21015551 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-34 915 DATE: March 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to August 1994. This appeal was remanded by the Board of Veterans’ Appeals (Board) for additional development in October 2018. TDIU The Veteran is seeking a total disability rating based on individual unemployability (TDIU). He claims that his service-connected disabilities render him unable to obtain and maintain gainful employment. See December 2014 VA-Form 21-8940. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In reviewing the claims file, the Board notes as an initial matter that the Veteran meets the schedular requirements for the assignment of a TDIU. As of the date of this decision, his service-connected disabilities consist of: intervertebral disc syndrome, lumber spine (40 percent), total left knee arthroplasty to include degenerative joint disease (30 percent), left shoulder strain (20 percent), limitation of flexion, right knee (0 percent), limitation of motion of the left ankle (0 percent), and hypertension (0 percent); the combined rating is 70 percent. The record also indicates that the Veteran graduated from high school and attended four years of college. The Veteran last worked for the U.S. Census Bureau from September 2009 to April 2010, where he earned $2,800 per month. Prior to working at the Census Bureau, he worked as a logistics analyst for Infinity Solutions in Washington, D.C. from July 2008 to September 2008 and earned $10,500 per month. From August 2006 to February 2008 he worked at Sam’s Club as an overnight stocker where he earned $2,400 per month. From October 1999 to August 2006, the Veteran owned and worked at Expert Document Destruction where he earned $9,000 per month. See December 2014 VA-Form 21-8940. Records from the Social Security Administration (SSA) also show that the Veteran worked as a purchasing manager for a bank from May 1994 until 1999. See SSA/SSI Letter. In March 2015, the Veteran underwent a VA examination to evaluate his ankle, lumbar spine, and right and left knee conditions. At the time, the Veteran complained of left ankle, back, and bilateral knee pain. Regarding his ankle, the Veteran indicated that he had pain when weightbearing, and that his ankle would roll easily. Full range of motion was recorded, and the examiner opined that the Veteran’s ankle condition would not impact his ability to perform any type of occupational task. With regard to his lumbar spine condition, the Veteran reported daily lower back pain, which radiated to his right leg. The examiner documented a limitation of range of motion in his back. The Veteran’s left knee also had reduced range of motion, but muscle strength and joint stability were recorded as normal. Ultimately, the examiner opined that due to his thoracolumbar spine and knee conditions, the Veteran could walk about 100 yards, stand for 15-20 minutes, lift 40lbs, and sit, but would shift every 20 minutes. It was also noted that the Veteran described his typical day as inclusive of being able to perform activities of daily living, being able to drive, and being a deacon at church where he input computer information. See March 2015 VA Examination. In January 2017, the Veteran underwent a VA examination to assess his lumbar spine, ankle, shoulder, hypertension and bilateral knee conditions. At the time, the Veteran reported that his back pain had improved, and that he was only having pain episodically. No reduction in range of motion was recorded, and the examiner opined that the Veteran’s back condition would not affect his ability to work. Regarding his left ankle, the Veteran indicated that his pain fluctuated from barely any pain to increased pain. No reduction of range of motion was noted and muscle strength testing returned all normal results. The examiner noted that while the Veteran had a diagnosis for hypertension, his blood pressure was well controlled, and he was asymptomatic. The Veteran demonstrated reduced range of motion in both knees; however, he did not show reduced muscle strength or joint instability in either knee. The Veteran complained of left shoulder pain; however, he demonstrated a full range of motion and muscle strength testing yielded all normal results. Ultimately, the examiner opined that none of the Veteran’s lumbar spine, ankle, hypertension, bilateral knee, or shoulder conditions impacted his ability to perform any type of occupational task. See January 2017 VA Examination. In December 2018, a medical opinion was obtained to address the effect of the Veteran’s service-connected disabilities on his ability to function in an occupational environment. The examiner acknowledged the Veteran’s subjective reports that his lumbar spine disorder produced near-constant back pain, which prohibited him from walking more than 100 yards and lifting more than 20-30 pounds. Additionally, the examiner noted that the Veteran displayed a reduced range of motion but opined that this was limited by “effort and hypersensitivity.” When addressing the Veteran’s right and left knees, the examiner noted the Veteran’s subjective complaints of left knee pain, an inability to squat and walk more than 100 yards, and difficulty getting in and out of chairs. Again, the examiner opined that the Veteran’s range of motion, while reduced, was due to effort and hypersensitivity. Regarding the Veteran’s left shoulder, the examiner noted the Veteran’s subjective reports of constant pain, an inability to swing a golf club, use a rod and reel, or lift overhead. Range of motion for the shoulder was reduced, but the examiner held that this was affected by effort and hypersensitivity. See December 2018 VA Medical Opinion. Ultimately, the December 2018 examiner opined that the Veteran could do light physical activity if he chose to. In her explanation, she noted that the Veteran lived independently and continued to be independent for all activities of daily living. Furthermore, she noted that the Veteran drove his personal vehicle, left home as he chose, and enjoyed working on his computer, reading, and attending church. While the Veteran was unable to fish or play golf due to his back issues, the examiner noted that the Veteran assisted his church in keeping financial reports and visited the elderly. See December 2018 VA Medical Opinion. In September 2019, the Veteran underwent a VA examination to assess his lumbar spine condition. The examiner noted the Veteran’s complaints of back pain and recorded a reduced range of motion. Additionally, the examiner held that pain noted on the examination caused functional loss. Ultimately, with regard to functional impact, the examiner held that the Veteran’s low back pain would interfere with prolonged weight bearing activities over the course of an 8-hour day. See September 2019 VA Examination. Most recently, pursuant to an October 2018 Board remand, the Veteran was afforded a September 2020 VA examination to evaluate what effects his service-connected disabilities would have on his ability to secure and maintain a substantially gainful employment. See September 2020 VA Examination. When evaluating the Veteran’s hypertension, the examiner noted that the Veteran had high blood pressure in service and started taking medication to treat it in 1993. The examiner opined that since then, the condition had “stayed the same” and that the Veteran suffered no functional impact due to the hypertension. Regarding the Veteran’s left ankle, the examiner opined that the Veteran greatly exaggerated his symptoms, and as a result range of motion testing could not be accurately performed. Specifically, the examiner held that, “[the] Veteran would not move ankles well, though he was able to ambulate with good ankle motion and heel strike using a walker. Symptoms were exaggerated and inaccurate.” For this reason, the examiner held that it was impossible to identify the true status of the Veteran’s left ankle condition. Regarding the Veteran’s left shoulder condition, the examiner opined that the condition had resolved. Notably, range of motion testing yielded normal results and pain was not noted. In fact, the only pain or reduced range of motion that was noted during the examination was on the Veteran’s non-service-connected right shoulder. Turning to the Veteran’s knee conditions, the examiner noted that the Veteran’s right knee had a normal range of motion. Conversely, the Veteran’s left knee displayed reduced range of motion but exhibited no pain on weight bearing. No joint instability or reduction in muscle strength was noted on either knee. Due to his knee conditions, the examiner opined that the Veteran would have difficulty with stairs; however, she held that the, “Veteran should be able to function quite well in a sedentary position but may have some difficulty in positions requiring prolonged walking.” Concerning his lumbar spine condition, the Veteran reported experiencing lower back pain described as sharp pain from the buttocks to the right leg calf. Reduced range of motion was recorded, but no pain was noted during the examination. The examiner again felt that Veteran greatly exaggerated his symptoms and thus stated that she was unable to perform an adequate examination as a result. Ultimately, the examiner opined that, “[the] Veteran has decreased range of motion in the back, which would limit prolonged standing, bending or turning. However, I feel [the] Veteran’s effort was purposefully poor with exaggerated symptoms not consistent with his diagnoses.” Nonetheless, the examiner opined that the Veteran could perform sedentary work. See September 2020 VA Examination. After reviewing the foregoing, the Board finds that the preponderance of the evidence weighs against finding that the Veteran is unable to obtain and maintain substantially gainful employment. In reaching this determination, the Board finds that the most probative evidence of record are the December 2018 VA medical opinion and the September 2020 VA examination. Both were conducted with the purpose of evaluating how the Veteran’s service-connected disabilities would impact his ability to function in an occupational environment. Furthermore, both were based on a thorough review of the Veteran’s medical history and description of the Veteran’s symptomatology, and the September 2020 evaluation also included a physical examination conducted by a licensed physician. Both examiners opined that the Veteran faced some limitations due to his service-connected disabilities. Specifically, the December 2018 examiner opined that while the Veteran was limited in his ability to walk and lift, she felt that the Veteran was capable of performing light physical activity if he desired to. Furthermore, she noted that the Veteran continued to live independently, drive his car, work on his computer, visit the elderly, and assist his church in keeping financial reports. Similarly, the September 2020 examiner held that while the Veteran had decreased range of motion in his back, which limited his ability to engage in prolonged standing, bending or turning, he was capable of sedentary work. Therefore, the Board finds that while the Veteran has physical limitations that affect his ability to walk long distances, lift, bend, turn and stand for long periods of time, the preponderance of the evidence does not show that his service-connected disabilities render him unable to secure or follow a substantially gainful employment. Rather, the Board finds that while the Veteran has physical restrictions, he can perform non-physically demanding work. The record shows that the Veteran has a college education and has worked in several different fields throughout his career. Furthermore, the record shows that he has management experience from working at a bank and also as a business owner. The record also reflects that a recently as December 2018, the Veteran continued to drive, help his church with financial reports, work on his computer, read, and visit the elderly. The Board acknowledges the Veteran’s representative’s contention that since retiring from the military, the Veteran’s occupations have involved physical activity, which are prevented by his service-connected disabilities. The Board is sympathetic to this contention; however, the relevant question is whether the Veteran is capable of securing or following substantially gainful employment, not whether he is able to perform the same job that he had prior to the progression of his service-connected disabilities. In the present case, the evidence supports a finding that with his educational background, and work experience, the Veteran is capable of securing and following a substantially gainful employment. The Board also acknowledges the representative’s assertion that the Veteran’s hypertension renders him lightheaded and causes blurred vision, and that pain from the Veteran’s other service-connected disabilities lowers his ability to perform the mental tasks associated with his past occupations. See January 2021 Statement in Support of Claim. Regarding the contention that the Veteran’s hypertension renders him lightheaded and causes blurred vision, the Board finds that that this is not supported by the record. A thorough review of the Veteran’s postservice medical and VA examination reports records yielded no complaints or indications that the Veteran suffered either blurred vision or lightheadedness as a result of his hypertension. To the contrary, the record supports a finding that the Veteran’s hypertension is well controlled and asymptomatic. Additionally, the Board notes that the Veteran’s subjective complaints of pain were considered by VA examiner’s when determining the functional loss caused by his service-connected disabilities. Finally, in making the foregoing findings, the Board recognizes that the Veteran has been found to be disabled by SSA as of April 2010 due to a primary diagnosis of fractures of the upper limb and secondary diagnosis of essential hypertension. However, any determination made by SSA as to the Veteran’s eligibility for SSA disability is not binding on the Board in reaching its determination of whether a TDIU is warranted, as the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for TDIU, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.