Citation Nr: 21023558 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 09-05 316 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT For the entire period on appeal, the Veteran has not been unable to secure or maintain substantially gainful employment as a result of service-connected disability. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during Peacetime and the Vietnam Era, in the Navy from April 1973 to May 1977 and the Army from January 1978 to October 1978. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. 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. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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 may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran’s general contention, as liberally construed for him, is that he is unable to work due to the service-connected back disability. The Veteran has reported other non-service-connected disorders that impair his employability. The Veteran reported that he last worked in June 2004. See June 2007 Application for Compensation. As of February 2017, the Veteran is in receipt of a 20 percent disability rating for service-connected degenerative joint disease of the lumbar spine. The Veteran is not service connected for any other disabilities. The combined disability rating is thus also 20 percent. As such, the service-connected lumbar spine disability does not meet the combined disability rating criteria for threshold consideration of a TDIU under 38 C.F.R. § 4.16(a). The question then is whether the issue of TDIU should be referred to the VA Director of Compensation for initial adjudication under 38 C.F.R. § 4.16(b). Having considered all the evidence of record, lay and medical, the Board finds that referral under 38 C.F.R. § 4.16(b) to the Compensation and Pension Director is not warranted. While the evidence of record reflects that the service-connected disability causes some impairment, the evidence of record does not suggest that the service-connected back disability renders the Veteran unable to secure or maintain substantially gainful employment. In June 2007, the Veteran provided his work history from 2004 to 2007. The Veteran reported working labor for a food distributor in January 2004, for an employment agency in January 2004, working as a driver for a transportation company from February to April 2004, and working in a warehouse from April to June 2004, the date reported on the form as the last time the Veteran worked full time. The Veteran also reported working in a warehouse from January to April 2005. The Veteran reported applying for positions at the US Postal Service and VA offices in June 2007. The Veteran reported achieving a 12th grade education. The transportation company reported that the Veteran quit in June 2004. Another employer reported that the Veteran worked for them for three days in March 2004, before failing to show up for work. A separate employer reported that the Veteran worked from July to September 2004 and was unsure of the reason for the Veteran’s departure. Finally, a fourth employer reported that the Veteran worked in their warehouse from January to April 2005 but failed to describe why the Veteran departed from work. None of the employers report that the Veteran had to miss work due to a disability. The Veteran received a hearing before the Board in March 2015. During the hearing, the Veteran’s representative reported that the Veteran was essentially jobless and homeless for most of the period from 1995 to 2015 due to chronic alcoholism. The Veteran’s representative reported that the alcoholism was primarily due to pain management for a right shoulder injury (for which the Veteran is not currently service connected). The Veteran also reported experiencing that he cannot move, walk, or raise the shoulders due to back spasms. The Veteran reported that he worked as a forklift operator for five years. In September 2015, the Veteran was examined by VA. During the examination, the Veteran reported that he mows the yard, does housework, cleans the dishes, rides his bicycle, cleans the pews and mops at his local church, and goes camping when his back is not hurting. VA treatment reports from December 2016 show that the Veteran reported his back pain as being mild. The same month, the Veteran attempted to enroll in Compensated Work Therapy at VA. Initially, the Veteran reported to VA that his primary care doctor had prohibited the Veteran from working due to the Veteran’s back; however, the following day, the Veteran reported that the doctor had cleared the Veteran to work. See December 2016 VA Treatment Records. The Veteran received a VA examination in February 2017 for the lumbar spine. During the examination, the Veteran reported that he had last worked in 2006. He reported that he was unable to work because he has a non-service-connected pension (as of February 2021, the Veteran is in receipt of a monthly non-service-connected pension). The examiner noted that the Veteran had normal range of motion, with no pain noted on the examination. The examiner did note painful spasms. The Veteran had a very slight reduction in range of motion after repetition. The examiner noted that the muscle spasms and guarding resulted in an abnormal gait. The examiner noted full muscle strength, normal sensory motions, no radiculopathies, and no ankylosis. The examiner noted that the Veteran had invertebral disc syndrome, but reported that the Veteran had never been prescribed bed rest by a physician. The Veteran did not report use or need of assistive devices. The examiner in February 2017 assessed that there was no functional impairment, but that chronic pain intermittently interferes with home, work, chores, shopping and exercise activities. The examiner noted that the disability restricts the Veteran’s ability to perform jobs requiring prolonged standing, sitting, walking, heavy lifting, repetitive bending, kneeling, squatting, climbing, and crawling. The examiner reported that the Veteran will be able to perform sedentary, light or desk jobs; to drive, work with small machineries, carry and lift small objects weighing less than 10 lbs. for less than 30 minutes before resting; and to remember, communicate with coworkers, follow instructions, adapt to changes or stress, interact, use judgment, show insight and concentrate. The Veteran reported being able to sit down for an hour. The Veteran received a back brace from VA in May 2017. VA treatment reports from September 2018 include a report from the Veteran that he is generally able to drive, however he begins to develop back spasms over long distances. See September 2018 VA Treatment Records. VA treatment reports from June 2019 show normal range of motion in the lumbar spine. VA records from this period also note that the Veteran has a competitive work history in janitorial and warehouse duties, albeit with a current gap in competitive work history back to 1998. The Veteran engaged with Vocational Rehabilitation Services during this period with the intent to find a job. The evidence shows that the service-connected lumbar spine disability does impair the Veteran’s ability to perform certain tasks: the Veteran’s statements and the medical evidence shows that sometimes the Veteran has difficulty moving or walking or carrying heavy items for sustained periods of time. The Veteran has reported being unable to drive for sustained long periods of time due to back spasms. These symptoms would certainly prevent the Veteran from carrying heavy items or long-distance transportation work. The Veteran does not have any special education or certifications, and has formalized schooling to a 12th grade level. However, the Veteran did report being a forklift operator for five years. Such a career would not require sustained long-distance driving, picking up and moving heavy objects without the use of machinery, sustained standing or walking, or specialized experience that the Veteran does not have. Having reviewed all the evidence of record, both lay and medical, the Board finds that the lay and medical evidence suggests that the criteria for a referral for adjudication of TDIU have not been met for any period on appeal. The lay and medical evidence of record indicates that the Veteran exited the workforce due to substance abuse issues, as opposed to being incapable of continuing work; is not incapable of light work despite some functional impairment caused by the service-connected disability; and has five years of experience as a forklift operator, which would not aggravate the service-connected back disability. As such, the evidence as a whole suggests that the Veteran was not rendered unable to obtain or maintain employment due to the service-connected back disability. For these reasons, the requirements for referral for adjudication of TDIU have not been met. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.