Citation Nr: 21023665 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-19 758 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to June 10, 2010, is denied. FINDING OF FACT The Veteran’s service-connected disabilities have not precluded him from securing or maintaining substantially gainful employment prior to June 10, 2010. CONCLUSION OF LAW The criteria for a TDIU prior to June 10, 2010 have not been met. 38 U.S.C. §§ 1155, 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 on active duty in the United States Army from January 1970 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran testified at a Board hearing. The Veterans Law Judge (VLJ) that conducted the hearing is no longer employed with the Board. A transcript is of record. On February 14, 2017, the Board received a properly executed Due Process waiver from the Veteran’s representative on his behalf. As such, the Board has determined that the Veteran waived his right to an additional hearing. A July 2017 Board decision denied a TDIU prior to June 10, 2010. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claim (Court). In May 2018, the Court granted a Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. The Board remanded the appeal in October 2018 to the agency of original jurisdiction (AOJ) for further development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998).  Entitlement to a TDIU prior to June 10, 2010. The Veteran’s claim for entitlement to a TDIU is raised by the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For the reasons that follow, the Board finds that a compensation based on a TDIU, prior to June 10, 2010, is not warranted. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); also see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Additionally, entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The phrase “unable to secure and follow a substantially gainful occupation” in 4.16 has both an economic and a noneconomic component.  Ray, supra. The economic component means an occupation earning more than marginal income outside of a protected environment. Id.  The noneconomic component concerns whether the Veteran is able to “secure or follow” gainful employment.  Id.  In determining whether a Veteran can secure and follow a substantially gainful occupation, in addition to the Veteran’s history, education, skill, and training, the Board should consider whether he or she “has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required” to work in a substantially gainful occupation, and “whether the Veteran has the mental ability to perform the activities required” to work in a substantially gainful occupation.  Id.  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, this disability shall be ratable at 60 percent or more; 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).   For purposes of TDIU, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  In relevant part, before June 10, 2010, the Veteran was service-connected for: (1) myocardial infraction, coronary artery disease (CAD), and stenting, rated at 10 percent from December 11, 2003 and 30 percent from January 14, 2005; (2) dysthymic disorder (depression), rated at 50 percent from January 17, 2008; (3) diabetes, rated at 20 percent from January 29, 2006; (4) left ear hearing loss, rated at 10 percent from December 11, 2003; and (5) erectile dysfunction, rated noncompensable from May 12, 2010. The Veteran’s combined evaluation prior to June 10, 2010 was 20 percent from December 11, 2003, 40 percent from January 14, 2005, 50 percent from January 29, 2006, and 80 percent from January 17, 2008. As such, the schedular percentage criteria for a TDIU are met from January 17, 2008. It is also undisputed that the Veteran was gainfully employed until January 2006, working 40 hours per week as a truck driver. See November 2010 VA Form 21-8940 (VA 21-8940). The Veteran asserts that he retired in January 2006 due to his service-connected disabilities. Under certain circumstances, the issue of entitlement to a TDIU may be submitted to the Director for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Turning to whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted, as noted, the Board remanded the matter of entitlement to a TDIU for referral to the Director for extraschedular consideration pursuant to the October 2018 Board remand directive. In November 2020, the Director denied entitlement to TDIU on an extraschedular basis. The Director’s decision is not binding on the Board, and the Board will conduct its own de novo review of the TDIU claim. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Accordingly, the Board will focus its analysis on whether the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities from January 1, 2006 to June 10, 2010. Turning to the evidence of record, the Veteran’s military occupational specialty (MOS) was a cook. See DD Form 214. He initially worked in communications MOS, but due to his hearing issues he was assigned to work as a kitchen manager. See September 2010 VA examination. Since separation from service and prior to June 10, 2010, the Veteran primarily worked in manufacturing and as a truck driver. He also ran his own auto repair business. With regards to the Veteran’s education level, his education includes high school diploma and an auto mechanic training. See VA 21-8940. He has technical knowledge or skills and has experience using tools or equipment. He also completed reports or other writing at his auto repair business. See SSA records. Based on his education and past work experience, the Board finds that the Veteran has a limited proficiency to work in an office-like setting, performing administrative or clerical work.  As to the Veteran’s contentions, he asserts that prior to June 10, 2010, he was unable to work due to his spine condition and diabetes. See VA 21-8940. The Veteran’s representative also asserts that his heart condition, coupled with other service-connected disabilities, affected his ability to work and caused him to retire early in 2006. See March 2021 Appellant’s Post-Remand Brief (Brief). During the August 2012 Board hearing, the Veteran testified that his hearing loss occasionally impacts his work due to hearing aid issues. He also testified that he has problems with fatigue, chest pain and dizziness due to his heart condition, which occasionally impact his ability to complete tasks. The Veteran underwent a VA examination for his CAD in June 2010. The Veteran reported a history of 2 heart attacks (January and March of 2002), cardiac catherization and 3 cardiac stents. He reported experiencing angina, dizziness, fatigue and dyspnea. He also reported retiring in 2005 due to his heart issues. Upon examination, the objective evidence showed workload of 9 METs (metabolic equivalent). The Veteran’s left ventricular ejection fraction (LVEF) was noted at 60-65 percent. The examiner noted that the Veteran can run, chop hardwood, ski, and engage in calisthenics. The examiner also noted no evidence of congestive heart failure. Symptoms of dyspnea at rest and the requirement for continuous medication to control the Veteran’s heart disease were noted. The examiner concluded that the Veteran’s heart disease affects the Veteran’s ability to work due to the lack of stamina, weakness or fatigue. The examiner noted that shortness of breath hinders the Veteran’s exertional activities of daily living. A review of the Veteran’s treatment records pertinent to his CAD disability shows that prior to June 10, 2010, the Veteran’s stress test results were within normal limits, with workload of 7 METs and his CAD has been stable on aspirin (ASA). See e.g. January 2004, January 2005 and March 2006 private treatment records. He also experienced no chest discomfort during the stress test but did have dyspnea and leg fatigue. See December 2006 private treatment record. His exercise tolerance was normal for his age and gender but noted as abnormal for an average sedentary adult. The Veteran’s treatment records also show that while he was briefly unable to work due to CAD and heart attacks, he was medically cleared to go back to work in a full capacity with the highway department in May 2003. The Veteran’s service connection for his depression was granted in a March 2012 rating decision effective January 17, 2008. The AOJ’s decision was based on a September 2010 VA examination. At the examination, the Veteran reported suffering from insomnia and social isolation, and being irritable and angry. He also reported that his mental health symptoms have impaired his day-to-day functioning by hampering his career and damaging his relationships. The examiner noted that the Veteran’s symptoms appear to present a moderate level of impairment. The examiner concluded that the Veteran’s depression symptoms result in a reduced reliability and productivity of his functional capacity. A review of the Veteran’s treatment records throughout the period on appeal indicate that his mental status was alert, he was oriented to person, place and time, and his affect was normal. While the evidence of record shows poor sleep quality due to depression, there is no indication that prior to June 10, 2010 the Veteran experienced sleep issues that were severe in nature and impacted his occupational functioning. In addition, the Veteran’s treatment records indicate that his sleep issues are due to pain caused by his service connected and non-service-connected disabilities. The Veteran underwent a VA examination for his diabetes in April 2006. He reported experiencing high blood sugar episodes and taking medication to control his diabetes. He also reported occasional fatigue, lassitude and intermittent numbness and tingling in right upper extremity fingers from diabetes. He denied having any complications related to his disability. The Veteran also reported being able to walk about a mile without having issues with shortness of breath. His examination results were within normal limits. The examiner noted that the Veteran’s diabetes is maintained on oral hyperglycemic agents. No requirement for insulin injections or regulation of activities was noted. A review of the Veteran’s treatment records related to his diabetes shows that his disability has been well-controlled with oral agents throughout the period on appeal. See e.g. September 2008 private treatment record. No regulation of activities is shown. The Veteran underwent a VA examination for his hearing loss in March 2009. He reported having hearing issues since service. He also reported bilateral tinnitus, which is much worse in the left ear. The Veteran’s primarily complaint was difficulty localizing sound and understanding conversation in a noisy environment. The examination revealed profound sensorineural deafness in the left ear. The examiner concluded that the Veteran’s difficulties with hearing affect his occupational functioning. The examiner noted that his hearing issues have no effect on usual daily activities. The Board notes that the Veteran is service connected for left ear hearing loss only. He is not service connected for right ear hearing loss or tinnitus. A review of the Veteran’s medical records during the period on appeal shows that his speech recognition has been excellent, and his hearing was reported as grossly intact. See e.g. March 2006 VA treatment record. His medical treatment records also show that he has been using hearing aids for his hearing loss issues. As to the Veteran’s service-connected erectile dysfunction, the Board notes that his disability rating throughout the period on appeal has been noncompensable. Further, at a June 2010 VA examination, the examiner concluded that the Veteran’s erectile dysfunction has no impact on his usual daily activities. The Veteran also underwent an evaluation in July 2006 for the purpose of assessing his eligibility to receive Social Security Administration (SSA) disability benefits. See SSA records. The Veteran reported that he is unable to work due to his spine condition, shoulder pain and CAD. The evaluation revealed that the Veteran is able to stand, sit and walk for about 6 hours in an 8-hour workday, and he has no communicative limitations, including hearing or speaking. No environmental limitations were noted. The Veteran’s primary occupational limitations were noted due to his spine condition. The Board notes that the Veteran is not service connected for his spine or shoulder condition. Based on a review of all the evidence of record, the Board finds that the Veteran’s service-connected disabilities alone have not precluded him from being able to secure and maintain substantially gainful employment prior to June 10, 2010. The Board acknowledges that the Veteran’s CAD impacted his ability to perform physically challenging work prior to June 10, 2010. Nonetheless, the evidence does not show that this disability, or the Veteran’s other service-connected disabilities, precluded him from obtaining and retaining substantially gainful employment, such as sedentary or light duty physical work. The Board notes that the term “sedentary employment” is not defined in statute or regulation, and there is no requirement that it be used. See Rouse v. McDonough, No. 19-5699, 2021 U.S. App. Vet. Claims LEXIS 632, at *2 (Vet. App. Apr. 13, 2021) (citing Withers v. Wilkie, 30 Vet. App. 139 (2018)). However, in this case, the Board finds that “sedentary” means “doing or requiring much sitting” or “not physically active.” Merriam-Webster’s Collegiate Dictionary 1123 (11th ed. 2012). It also means “1. Sitting habitually; of inactive habits; 2. Pertaining to a sitting posture.” Dorland’s Illustrated Medical Dictionary 1687 (32nd ed. 2012). Based on the foregoing, the Board finds that prior to June 10, 2010, the Veteran was able to perform sedentary or light duty physical employment. Significantly, the Veteran has some experience akin to office-like work, as his initial MOS was in communications, he also owned his auto repair shop, and he completed reports or other writing throughout his career. The record also does not show that his CAD disability prevented him from working as a truck driver as evidenced by his May 2003 medical clearance, allowing him to go back to work as a truck driver in a full capacity. In addition, the evidence of record shows that prior to June 10, 2010, the Veteran was able to sit and stand for 6 hours in an 8-hour workday. As such, prior to June 10, 2010, the Veteran was able to perform a job that is not labor-intensive. The Veteran’s other service-connected disabilities also did not impact his ability to perform sedentary or light duty physical employment prior to June 10, 2010, e.g., work as a delivery or shuttle driver only requiring local and light duty driving. Specifically, the Board notes that medical professionals have not found the Veteran to be precluded from obtaining and/or maintaining employment due to his service-connected disabilities. It is acknowledged that the June 2010 VA examiner found that the Veteran’s heart disease affects his ability to work due to the lack of stamina, weakness or fatigue. The examiner noted that shortness of breath hinders the Veteran’s exertional activities of daily living. Nonetheless, no other limitations were noted. In addition, as noted, the Veteran’s treatment records show that while he was briefly unable to work due to CAD, he was medically cleared to go back to work in a full capacity with the highway department in May 2003. The Veteran worked in this capacity until 2006. Thus, the Board concludes that even though the Veteran’s ability to perform physically challenging work prior to June 10, 2010 was limited, he was still able to function well in predominately sedentary or light duty physical roles as evidenced by his truck driving position. The Board also notes that some of the Veteran’s complaints predate the appeal period. Yet, even when considering those complaints, the inability to obtain and maintain substantially gainful employment has not been demonstrated. Further, while the Veteran had some difficulties with functioning in a role requiring frequent oral communication due to his service-connected left ear hearing loss, the Veteran was not precluded from performing a position consistent with his level of education and work experience. As noted, the Veteran is not service connected for tinnitus or right ear hearing loss. In any event, the evidence of record also shows even though the Veteran may have difficulty localizing sound and understanding conversation in a noisy environment, as noted, prior to June 10, 2010, his hearing was reported as grossly intact and he has been using hearing aids for his hearing loss issues. At the August 2012 Board hearing, the Veteran also testified that he has occasional issues with his hearing aid. However, he admitted that his hearing issues did not impact his position as a driver. Additionally, the Board finds that any accommodations afforded by an employer that would have allowed the Veteran frequent breaks, ergonomic work environment, and work on solo projects or use technology to communicate in writing, would have been reasonable not extraordinary. See Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring) (“Where a claimant’s employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.”). In fact, the evidence of record shows that while in the military, the Veteran’s initial MOS was in communications. However, due to his hearing issues he was moved to being a cook. The Veteran’s former employer also provided him with an opportunity for a lateral transfer from operating heavy equipment to a truck driver position that required less physical exertion. Thus, consistent with his physical limitations, the Veteran’s service-connected disabilities would not have impacted his ability to perform sedentary or light duty physical tasks. The Board acknowledges the Veteran’s statements that prior to June 10, 2010, he was not even able to perform sedentary work because of his service-connected disabilities. See August 2012 Board hearing transcript. However, for the purposes of a TDIU, the term “substantially gainful” does not necessarily mean that the Veteran has the job for which they were trained. When analyzing whether a TDIU is warranted, the Board considers whether the Veteran has the potential to earn more than marginal income and his employment history, education, skill, and training. See Ray, supra. As noted, while the Veteran has a limited proficiency to work in an office-like setting, based on his education and experience he has some ability to perform some types of administrative or clerical work, and he has the ability to perform sedentary or light duty physical employment prior to June 10, 2010, e.g., delivery or shuttle driver work, or local and light duty driving. Thus, even though the Veteran was no longer able to perform physically challenging type of work, the Board finds that prior to June 10, 2010, his service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment. The Board has also considered entitlement to a TDIU prior to June 10, 2010 on extraschedular basis. 38 C.F.R. § 4.16(b). However, as noted, the evidence of record does not show that the Veteran is unemployable solely by a reason of his service-connected disabilities. In fact, on his VA 21-8940, the Veteran primarily listed his spine condition as one of the disabilities preventing him from securing or following any substantially gainful employment. As such, a TDIU on this basis is not warranted. The Board is mindful of the SSA determination. Nonetheless, given the different standards utilized by VA and SSA, the Board is not bound by the SSA determination. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In sum, while the Veteran experienced symptoms related to his service-connected disabilities prior to June 10, 2010, the evidence does not show that the Veteran was unemployable solely due to these service-connected disabilities. The preponderance of the evidence is against the claim. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, entitlement to a TDIU prior to June 10, 2010 is not warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.