Citation Nr: 21016006 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 12-27 071A DATE: March 19, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.   FINDING OF FACT The Veteran’s combined service-connected disabilities have not prevented him from securing or following substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to August 1989. This case is on appeal from an October 2011 rating decision. In May 2016, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. The Board previously remanded the matter in June 2017. In the June 2017 remand, the Board referred additional issues to the RO. Those issues were entitlement to initial increased disability ratings for radiculopathies of the lower extremities and entitlement to a temporary total rating for convalescence from lumbar spine surgery. As the appeals for those two issues have not yet been certified to the Board, they remain outside the scope of the instant decision. A TDIU In his August 2016 TDIU application, the Veteran wrote that he last worked full-time and became too disabled to work in April 2008, which is also when his disabilities first affected full-time employment. He identified the service-connected disabilities preventing him from securing or following any substantial gainful employment as degenerative disc disease. He last worked at a factory in the automotive industry. He left this job because of his disability and had not tried to obtain employment since becoming too disabled to work. He had a high school education with additional training as an aircraft mechanic and firefighter. The Veteran submitted a statement in August 2016 reporting that he had received disability benefits from the Social Security Administration (SSA) due to the disabling effect of his service-connected low back disability, which precluded his ability to sustain employment. In his October 2012 VA Form 9, he wrote that he suffered from incapacitating episodes of back pain daily. He could do only a limited amount of his daily routine before having to lie down with a heating pad to his back for approximately 4-6 hours per day. A. Applicable Law Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. For the purpose of meeting these schedular criteria, disabilities from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(2). It is also the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, 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 paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). B. Discussion The question for the Board in this case is whether the Veteran’s service-connected disabilities alone are of sufficient severity to make him unable to secure and follow a substantially gainful occupation consistent with his education, skill, and training. The Board finds that the preponderance of the evidence is against such a finding. The Veteran is service connected for (1) dysthymia (claimed as mental health condition) associated with degenerative arthritis and degenerative disc disease, lumbosacral spine, claimed as back condition; (2) degenerative arthritis and degenerative disc disease, lumbosacral spine, claimed as back condition; (3) radiculopathy, left lower extremity; and (4) radiculopathy, right lower extremity. Although service connection for the dysthymia is in effect for only part of the rating period on appeal. As indicated, the Veteran has training as an aircraft mechanic and firefighter, and he had experience in factory work in the automotive industry. Regarding his physical abilities, the evidence shows limitations with prolonged sitting, standing, and walking due to his service-connected back disabilities. The evidence shows that his nonservice-connected disabilities also significantly impact his physical ability to work. The Veteran reported at an April 2010 VA examination that he had limited standing, movement, or any weight-bearing during flare-ups. He reported any movement, standing, or bending would aggravate his pain. Also, he was unable to walk more than a few yards. The examiner found that there were significant effects on his usual occupation due to decreased mobility, manual dexterity, lifting and carrying, reaching, and stamina, weakness/fatigue, and decreased strength. At a VA examination in October 2011, the Veteran gave a similar account of his functional limitations. The VA examiner found that the Veteran’s back condition was not likely to impact his ability to obtain and maintain substantially gainful sedentary employment, but was likely to impact his ability to obtain and maintain substantially gainful employment that required physical job duties. At a March 2013 VA mental health examination, the Veteran reported that sitting or lying down for periods of time caused discomfort. At a January 2018 VA back examination, the Veteran again reported that his pain got worse with activity. He reported that his legs were weak, and he could not squat or stand up. He was able to drive short distances, but was unable to stand for prolonged periods of time. The VA examiner found mild pain in the lower extremities and an impact on his ability to work due to the reports of inability to sit and stand for prolonged periods, drive long distances, and other functional limitations. At a peripheral nerves portion of the examination, it was found that his radiculopathy had no effect on occupational activities. The private and SSA medical records contain significant evidence concerning the functional limitations of his service-connected and nonservice-connected disabilities. For example, a June 2008 private neurology consultation summarized that the Veteran had had a seizure and now had muscle pain constant. He stopped working as he could not even stand and had difficulty picking things up on prolonged walking. (The assessment was metabolic myopathy.) He could still bicycle 6 miles (whereas he could do 16 miles two years prior), and he had just started digging a fence in his yard. At a March 2009 evaluation for SSA, the Veteran complained of complained of “remarkably horrible” back pain and muscle pain/weakness. He did not do yard work, but the week prior had cut firewood. The Veteran stated that he was not working because he could not move. Records from his private provider from June 2008 through October 2008 show that light work status was recommended. He reported during private psychiatric treatment in May 2009 that he had days he was able to participate in physical activity, but was then laid up for one or two days trying to recover. In July 2010, his provider wrote that the Veteran could return to work with the following restrictions: lift/push/pull up to 15 pounds; alternate between sitting/standing/walking every 1 hour; allow frequent change of body position; avoid repetitive bending; avoid repetitive twisting; and limited driving, no more than 30 minutes at a time. By May 2011, it was noted that the Veteran had increased his activities at home, including cutting lawns, but he felt this had exacerbated his symptoms. Relatedly, his private neurosurgeon in November 2011 noted that prolonged standing and extension-based maneuvers aggravated his symptoms. At a July 2013 VA Occupational Medicine evaluation, the Veteran reported that his primary problem was back pain radiating to the legs, but he also had neck pain, fibromyalgia, hypertension, a past myocardial infarction, depression, and headaches. The Veteran stated that he could not sweep, be on his feet, or shower without difficulty. He could walk 1 ½ miles, and sit and stand for 15 minutes. On physical examination, his lower extremities were found to have normal function except for mild weakness in the left leg. The examiner assessed an ability to walk, sit, and stand for prolonged periods limited by spinal pain, and also problems with bending, squatting, lifting heavy objects, and performing strenuous activity. It was found he did seem capable of nonstrenuous type tasks, performed without excessive sitting or standing, and ability to change his position when necessary, but he was at least moderately impaired to perform such work-related activities as bending, stooping, lifting, and other such work-related activities. As the Board pointed out in its prior remand, this evidence also includes an SSA Administrative Law Judge (ALJ) decision citing the Veteran’s nonservice-connected cervical spine disability, right carpal tunnel syndrome, and history of substance abuse disorders as factors rendering the Veteran unemployable, and the body of the decision further alluded to the Veteran’s nonservice-connected coronary artery disease, osteopenia/osteoporosis, and multiple thoracic spine fractures incurred during a seizure-related fall in 2006. At an annual VA consultation in October 2019, it was noted that the Veteran had multiple chronic muscle skeletal conditions including fibromyalgia, degenerative disc disease of the C-spine and lumbosacral spine, and a known spinal cyst, with reports of progressive right paraspinal back pain that did not necessarily radiate to the buttocks or extremity. Overall, this evidence shows that the Veteran’s service-connected physical disabilities affected his ability to sit, stand, and walk for prolonged periods. As indicated by the July 2013 SSA evaluation and, most recently, the January 2018 VA back examination, the service-connected symptoms impacted his work to this extent, but did not preclude nonstrenuous types of work that did not involve excessive sitting or standing if they allowed an ability to change position when necessary. Regarding his mental ability to perform work-related activities, the Veteran had some symptoms of depression that involved some irritability and an effect on his concentration and motivation. He underwent a private psychiatric evaluation in June 2008, which noted irritability. A January 2009 report for SSA noted that his depression had improved with treatment. A March 2009 SSA evaluation found that his concentration, memory, and reasoning skills appeared intact, but he had some mild impairments with memory skills and judgment. He appeared able to attend, comprehend, and follow basic instructions. The examiner found he was likely able to interact adequately with coworkers, supervisors, and the general public. According to a March 2009 SSA Psychiatric Review, the Veteran had mild restriction of daily activities and maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace, but could carry out detailed instruction, and maintain attention and concentration for extended periods. At a March 2013 VA examination, the Veteran reported getting upset due to pain and mobility issues. He was sometimes irritable and had depressed mood. The examiner found that he had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran’s symptoms were depressed mood. In an October 2018 VA depression screening, the Veteran answered “not at all” to all questions as to the frequency and severity of his depression. At a January 2018 VA examination, the examiner found that the Veteran’s symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. His social life involved regular contact with friends and family. His daily functioning involved getting up around 6:30 a.m., helping with the household, babysitting grandchildren for two hours per day, taking care of pets, and watching television. The Veteran reported difficulties sustaining focus and feeling easily distracted with scattered thoughts, health worries, and dealing with chronic pain. His level of depression depended on the intensity of pain and physical limitations. His symptoms were depressed mood, anxiety, and disturbances of motivation and mood. Overall, this evidence shows that the Veteran had some ongoing depression with irritability and disturbances of motivation, mood, and concentration. According to the March 2009 SSA evaluation, he retained the mental capacity to perform simple unskilled tasks. Since that evaluation, there has been no indication of a material worsening of his symptoms. To the contrary, the January 2018 VA examination shows a comparable disability picture. Hence, the March 2009 SSA evaluation remains probative evidence of his mental capacity for substantially gainful work, especially as it is consistent with the January 2018 VA examination. When considering the Veteran’s service-connected physical and mental limitations combined, this evidence does not show he is prevented from gaining and maintaining a substantially gainful occupation. He had some limitations with prolonged walking, sitting, and standing, plus decreased concentration. The evidence shows that he would not be unable to perform the functional requirements of any unskilled sedentary job. He had trouble sitting for prolonged periods of time, but most sedentary jobs would allow for intermittent breaks to get up and stretch. He had difficulty with prolonged standing and walking, but sedentary positions generally involve sitting to complete most work tasks. (By “sedentary work,” the Board intends the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018).) Such work would not be outside his background and experience. He had past work as a firefighter and in a factory. This past work would have transferrable skills within his physical and mental limitations, such as time management, customer service, teamwork, performing general clerical and administrative support tasks, learn new procedures, and understand and carry out written instructions. Such skills are shown to be within his physical and mental abilities even when considering the service-connected limitations. In short, it remains true that the Veteran has been found unemployable by SSA, and he has remained unemployed throughout the appeal period. However, this was due to a combination of his service-connected and service-connected disabilities. The evidence does not show that his service-connected disabilities alone would preclude a substantially gainful occupation. As such, the preponderance of the evidence is against the claim, whether on a schedular or extraschedular basis. Thus, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.