Citation Nr: 21023863 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-25 470 DATE: April 21, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected degenerative disc disease (DDD) of the spine, intervertebral disc syndrome (IVDS), lumbar strain, herniated disc bulge, lumbar spine (previously rated as lumbosacral strain) (hereafter “lumbar spine condition”) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected lumbar spine condition manifested as forward flexion limited to, at most, 40 degrees with pain; extension to 10 degrees with pain; left and right lateral flexion to 10-15 degrees with pain; and left and right lateral rotation to 10-15 degrees with pain, with associated functional impairment and evidence of guarding or muscle spasm, but no evidence of ankylosis. 2. The Veteran’s service-connected disabilities do not preclude substantially gainful employment for which his occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent for service-connected degenerative disc disease (DDD) of the spine, intervertebral disc syndrome (IVDS), lumbar strain, herniated disc bulge, lumbar spine (previously rated as lumbosacral strain), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107. As an initial matter, as part of the appeal for a higher rating for the back condition, the Board found in March 2017 that the issue of entitlement to TDIU was inferred as part of the appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). The claims were remanded for further development. The 2017 remand, in part, instructed the RO to provide a Form 21-8940 (Increased Rating Based on Unemployability) to the Veteran in order to obtain relevant employment information and to contact current and former employers to develop the claim. In August 2018, the RO sent the Veteran a letter explaining the requirements for developing his TDIU claim and requesting that he provide a completed Form 21-8940 to obtain employment information; however, he did not respond and did not otherwise submit the requested information. The Board again remanded these claims in April 2019. The Veteran submitted VA Form 21-8940 in December 2019 and indicated he stopped working full-time in 2008, he has also reported working odd jobs and being self-employed over the years. Therefore, when the claim was remanded again in April 2020, the Board asked that he provide a complete and accurate history of his employment (including part-time jobs) and annual income verification. In October 2020, the RO sent the Veteran a letter explaining the requirements for developing his TDIU claim and requesting that he provide a completed Form 21-8940 to obtain employment information; however, he did not respond and did not otherwise submit the requested information. As for the back condition, the 2017 Remand requested a new examination be conducted, and the 2019 Remand found the 2017 examination was not entirely adequate. An adequate examination was conducted in 2020, but the issue was remanded again in October 2020 to ensure all the Veteran’s VA medical records had been obtained. These records were then added to his file. The RO also made attempts to obtain his records from the Social Security Administration (SSA), as he reports receipt of disability benefits. As noted in the Remand, the Veteran is now in his 70’s, and once a person reaches retirement age, disability benefits automatically convert to retirement benefits. It is SSA’s policy to then destroy the medical records associated with the disability claim within seven years. See 68 F.R. 71210 (December 22, 2003). SSA responded in October 2020 that no records exist. Therefore, the RO complied with all Remand instructions, and the claim was readjudicated in a November 2020 Supplemental Statement of the Case. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA attempted to assist the Veteran in obtaining relevant information and records, but did not receive the requested cooperation from the Veteran in clarifying his work history and his income. Therefore, VA has satisfied its duty to assist in the development of the TDIU claim and has sufficiently complied with the terms of the Board's prior remand. At present, the claim has been returned to the Board for additional adjudicative action. 1. Entitlement to an evaluation in excess of 20 percent for service-connected lumbar spine condition The Veteran’s representative asserts that the Veteran’s service-connected lumbar spine condition warrants a rating in excess of 20 percent due to worsening symptoms of incapacitating pain, functional loss, and limitation of motion which have presented significant deficits with his activities of daily living. See March 2021 Appellate Brief. The Veteran's lumbar spine condition was rated as 20 percent disabling under the General Rating Formula for Injuries and Diseases of the Spine. To warrant a 40 percent disability rating, the Veteran's lumbar spine condition must manifest as forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. VA treatment records reveal the Veteran continued to report pain in his back and extremities and believed the examiners discounted his back pathology in the past. See December 9, 2009 VA treatment records. A January 2010 radiology record notes the Veteran’s spine shows degenerative changes. See January 13, 2010 VA treatment records (noting the Veteran was prescribed Darvocet for pain management). A May 2010 pain assessment notes the Veteran reported low back pain to be at a four on a scale of ten. See May 13, 2010 VA treatment records (noting Veteran complained of lower back and buttocks pain relieved by medication). An MRI indicates the Veteran has low back osteoarthritis, but the Veteran opts out of taking medication for pain. See May 20, 2010 VA treatment records (noting the Veteran has a “herniated nucleus pulposus” and is instructed to contact a doctor if pain worsens). During a June 2010 primary care visit, the Veteran reports he is satisfied with his pain management plan and is aware he should contact his physician should his pain worsen. See June 16, 2010 VA treatment records. An August 2012 nursing note reports the Veteran was on Vicodin for his back pain and various joint ailments. See August 2, 2012 (noting Veteran reports taking Vicodin for pain 3-4 times per day). During an October 2013 physical assessment, the Veteran denied any pain, had full range of motion on all joints, full muscle tone, and no weakness or numbness in his extremities. See October 29, 2013 VA treatment records (noting musculo-skeletal assessments were all normal). A March 2014 nursing note reports the Veteran is there for a shoulder check-up, but also “complains of some low back pain.” See March 24, 2014 VA treatment records. A preventative medicine visit notes the Veteran complained of neck and back pain. See October 19, 2017 VA treatment records (noting Veteran reported pain was a 5/10 and was taking Vicodin for relief). In a March 2019 visit, the Veteran reported experiencing worsening pain in the previous two years, especially with sitting, walking, and walking uphill. See March 5, 2019 VA treatment records (noting the Veteran was referred to physical therapy and given oral pain medication instead of localized pain shots). A June 2020 nursing triage encounter notes the Veteran’s back has been worsening the last three months with pain radiating down across his lower back making it difficult to stand for long periods of time. He denied numbness, tingling, inability to walk, fever, leg weakness or loss of bladder control. See June 8, 2020 VA treatment records. In August 2020, an MRI showed a diagnosis of severe spinal stenosis and the Veteran was prescribed pain medication, referred to physical therapy and to pain service for consideration of facet injections. See August 28, 2020 VA treatment records. However, records show he is still under oral pain medication as well. See October 9, 2020 VA treatment records. The Veteran was afforded a VA examination in July 2014 to evaluate the severity of his lumbar spine condition. He reported experiencing constant “sucker punch” pain in his low back that was aggravated by lying down, driving or sitting too long, and a deep pain in his lower back, down to the “cheeks,” and into his right groin. The examiner noted flare-ups did not impact the functionality of the Veteran’s thoracolumbar spine. The results of range of motion testing reflected he had forward flexion to 65 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees, for a combined range of motion of 190 degrees. The Veteran experienced no additional limitation of motion following repetitive use testing. Muscle strength testing was normal with no evidence of atrophy. There was no muscle spasm or guarding resulting in abnormal gait or spinal contour. There was a normal reflex exam, normal sensory exam, and a negative straight leg test. There was no ankylosis; however, there was evidence of moderate radiculopathy of left and right lower extremities. The 2014 examination did not include testing in active and passive motion, and in weightbearing and non-weightbearing (there is no opposing, undamaged joint to the lumbar spine), as required under 38 C.F.R. § 4.59, Correia v. McDonald, 28 Vet. App. 158 (2016), and resulted in the examination being deemed inadequate and remanded by the Board in 2017. It must be noted, however, that although the examination was inadequate to the extent it was incomplete and did not fully address all questions, the examination is still entitled to probative value regarding the remaining findings in the report, as the deficiency with respect to the additional testing needed has no obvious impact on the remainder of the physical examination. Accord Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). Pursuant to the Board remand, the Veteran was afforded a follow-up VA examination to evaluate the severity of his lumbar spine condition in August 2017. He reported constant, low back pain described as a "twisting sharpness" with a rating of 7/10. He noted the pain radiated across his low back into his bilateral buttocks and felt "like someone is giving me a shot in my buttocks." He endorsed radiating pain to his right groin, but denied any numbness and tingling to his bilateral feet. He noted flares occurred daily when rising from a sitting position and subsided after 30 minutes with treatment of Vicodin and diazepam. Range of motion testing reflected he had forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 10 degrees. There was pain with weightbearing but did not cause functional loss. The examiner noted objective evidence of localized tenderness or pain on palpation of the lumbar paravertebral area. The Veteran was able to perform repetitive use testing with at least three repetitions; however, there was no additional loss of function or range of motion following repetitive use testing. Further, the examiner noted he was unable to say without resorting to mere speculation whether flare-ups resulted in additional functional loss or range of motion. Muscle strength testing was normal with no evidence of atrophy. There was no muscle spasm or guarding resulting in abnormal gait or spinal contour. There was a normal reflex exam, normal sensory exam, and a negative straight leg test. There was no ankylosis, and once again there was evidence of moderate radiculopathy of left and right lower extremities. However, as with the previous exam, the Board found this exam inadequate because it failed to meet the Correia guidelines – there was no testing in active and passive motion, and it did not seem to have non-weightbearing range of motion testing (there is no opposing, undamaged joint to the lumbar spine), as required under 38 C.F.R. § 4.59. See Correia, supra. Again, the examination is still entitled to probative value regarding the remaining findings in the report, as the deficiency with respect to the additional testing needed has no obvious impact on the remainder of the physical examination. Pursuant to the April 2019 Board remand, the Veteran was afforded a third VA examination to evaluate the severity of his lumbar spine condition in January 2020. He reported his lower back had deteriorated in the last six months and he could not go up even small inclines without his back becoming “hunched over like a curly-cue.” The Veteran reported he needed a walker to walk his dogs and went up stairs on his hands and knees. Initial range of motion testing reflected he had forward flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees and left lateral rotation to 20 degrees. There was pain with weightbearing but it did not cause functional loss. The examiner noted objective evidence of localized tenderness or pain on palpation of the bilateral lumbar paraspinal area without erythema or edema due to service-connected condition. The Veteran was able to perform repetitive use testing with at least three repetitions; however, there was no additional loss of function following repetitive use testing. The examiner noted that upon repetitive motion, range of motion testing reflected he had forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees and left lateral rotation to 15 degrees due to pain and lack of endurance. The examiner noted the same estimated range of motion limitation during flare-ups. Muscle strength testing was normal with no evidence of atrophy. There was no muscle spasm or guarding resulting in abnormal gait or spinal contour. There was a normal reflex exam, normal sensory exam, and a negative straight leg test. There was no ankylosis; however once again there was evidence of radiculopathy with moderate intermittent pain of left and right lower extremities. In regard to the holding in Correia, the examiner noted passive range of motion testing was not appropriate for a thoracolumbar exam. Further, the examiner noted there was objective evidence of pain on non-weightbearing testing to the Veteran’s lumbar spine when in a supine position. The Board finds the VA examination to be adequate as it contains sufficient explanation and reasoning for the elements of Correia. The greater weight of the evidence does not establish that the Veteran's lumbar spine condition results in forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant an increased 40 percent rating. Results of range of motion testing reflect that, at most, the Veteran's forward flexion was limited to 40 degrees with pain. All of the actual measurements and estimates of range of motion by medical professionals indicate that the Veteran's forward flexion was not limited to 30 degrees or less. Additionally, there is no evidence of ankylosis noted in any of his medical records, and the January 2020 VA examination noted the Veteran did not have ankylosis of the spine. The Board notes the Veteran's belief that he is entitled to higher disability rating because of his constant low back pain, such that it interfered with his ability to get jobs, maintain jobs, and his marital life. See January 2010 Statement in Support of Claim. However, the evidence does not suggest that his pain causes severe limitation of motion that more approximates limited flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine. There is no evidence, objective or lay, that reflects the Veteran's symptoms are more adequately compensated by a rating greater than 20 percent. The Board has considered whether the Veteran could be granted a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, While the record does reflect that the Veteran has been diagnosed with IVDS, the record reflects he has not been prescribed bed rest by a physician due to incapacitating episodes within any 12-month period. While he may voluntarily choose to limit activity due to increased pain, that is not how VA defines an incapacitating episode. Additionally, as noted supra, the Veteran is already service connected and receiving separate ratings for radiculopathy. These ratings are not before the Board as they were decided in the October 2020 decision, and further discussion is not warranted. In considering these rating criteria, the Board has considered functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In making this determination, the Board considered the Veteran's statements regarding his symptoms, VA examination reports, and VA treatment records. The January 2020 VA examination report noted the Veteran's complaints of pain, weakness, fatigability, and incoordination after repetitive use over time and during flare-ups. The examiner noted the range of motion following repetitive use and estimated the same range of motion limitations would be present during flare-ups. As such, while the record shows low back pain and difficulty with sitting, walking, and walking uphill, the evidence does not show that his symptoms and flare-ups produce functional loss that is manifested by adequate evidence of disabling pathology for higher ratings. See 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Indeed, the Veteran's disability rating is already based on the extent to which his symptoms and pain reduce range of motion. In light of the Veteran's reported symptoms and the medical evidence, the Board finds that the Veteran is not entitled to a higher rating for his lumbar spine disability. In summary, for the entire period on appeal, the criteria for a rating greater than 20 percent for the Veteran's lumbar spine condition have not been met. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks entitlement to TDIU based on his service-connected disabilities. 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. See 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. See 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). Entitlement to a TDIU must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question is whether his service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. The Veteran asserts he is entitled to TDIU and argues that his service-connected disabilities preclude him from obtaining and maintaining gainful permanent employment. However, the Board concludes the Veteran’s service-connected conditions do not preclude him from obtaining and sustaining sedentary type or light type of physical employment where standing/walking/lifting heavy objects during an eight-hour workday is typically not required. From May 13, 2010 to July 6, 2014, the Veteran was service connected for the lumbar spine condition at 20 percent; left lower extremity radiculopathy associated with the lumbar spine condition at 10 percent; and right lower extremity radiculopathy associated with the lumbar spine condition at 10 percent; for a combined rating of 40 percent. From July 7, 2014 to November 29, 2017, the ratings for the bilateral lower extremity radiculopathy were increased to 20 percent for each leg, resulting in a combined rating of 50 percent. Effective November 30, 2017, the Veteran was granted service connection for atherosclerotic cardiovascular disease at 10 percent, resulting in a combined rating of 60 percent. Therefore, the Veteran did not meet the schedular criteria for TDIU at any point during the appeal period, as his disabilities did not result in an overall combined rating of 70 percent and the conditions resulting from a common etiology (the lumbar spine condition and radiculopathy) did not combine to a 60 percent rating. 38 C.F.R. § 4.16(a). Where the percentage requirements of 38 C.F.R. § 4.16(a) 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. 38 C.F.R. § 4.16(b). In such cases, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, that 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). Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further 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 the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, at 358; 38 C.F.R. § 4.16 (a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. See 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Under the facts of this case, the Board finds a referral for extraschedular consideration is not warranted. As noted above, in October 2020, the RO provided the Veteran with notice regarding how to substantiate the TDIU claim and requested that he complete and return VA Form 21-8940 in an attempt to reconcile inconsistencies between the Veteran’s previously submitted form and reports of part-time employment made in other records in his file. To date, the Veteran has failed to complete an updated form or otherwise provided the necessary information as to his employment and annual income. Therefore, the Board must make a decision on the evidence of record, as incomplete as it may be. The Board inferred a TDIU claim as part and parcel of the Veteran's lumbar spine increased rating claim and his reports of unemployment during the period on appeal, which included reporting being retired, working odd jobs, and being self-employed to various medical professionals. Therefore, the evidence indicates that he has worked to some degree during most, if not all, the period on appeal. The Veteran has a high school education. See December 5, 2019 VA Form 21-8940, Application for Increased Compensation Based on Unemployability. His employment history includes ten years of self-employment as a maintenance worker, owning a bar, working construction, working as a truck driver (in service), being a service rep in the past and a purchasing agent for Westinghouse. See December 5, 2019 VA Form 21-8940, Application for Increased Compensation Based on Unemployability; see also July 2014 VA exam; see July 15, 2010 VA treatment records; see May 13, 2010 VA treatment records; and May 19, 2008 VA treatment records. Prior to November 2017 During this time period the Veteran was service-connected for the lumbar spine condition and bilateral lower extremity radiculopathy. Although the Veteran reported on his Form 8940 having retired in 2008, the evidence discussed below indicates he obtained and maintained several jobs thereafter. As an initial matter, it is noted the Veteran’s disability percentage did not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), and a schedular TDIU cannot be granted on appeal. While the Veteran could theoretically still qualify for an extraschedular TDIU, referral for extraschedular consideration is not warranted, as unemployability due to service-connected disability is not shown in the competent evidence. The July 2014 VA examiner opined that the Veteran’s back disability prevented the Veteran from obtaining or maintaining gainful employment. However, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). In this instance, based on the well-documented evidence on record, the Veteran successfully obtained employment as a handy man and as a driver, among other occupations, well beyond his reported retirement date. The fact that he had symptoms and functional limitations is certainly credible, but these limitations are contemplated by the disability rating assigned. The notations in the record cited below show that despite these limitations, the Veteran continued to work. • A July 2009 social work entry notes the Veteran’s ankle and back were in intolerable pain and it was “impacting his work,” making him angry. See July 17, 2009 VA treatment records. • A July 2009 orthopedic surgery consult noted the Veteran reported his job was that of a “construction laborer,” and his knee pain was making it difficult for him to work. See July 23, 2009 VA treatment records. • An August 2009 social work entry reported he was “finally getting some relief from his back pain and so he has been able to work more.” See August 28, 2009 VA treatment records. • An October 2009 podiatry note states Veteran reported he was forced to return to work. See October 8, 2009 VA treatment records. • A January 2010 psychiatry nurse states the Veteran reports he is unemployed, but does odd jobs and fixes up rental properties. See January 6, 2020 VA treatment records. • A May 2010 psychiatry note reports Veteran worked managing rental properties but was in danger of losing them. See May 13, 2010 VA treatment records. • A September 2010 social work visit notes the Veteran reporting he is “working some.” See September 22, 2010 VA treatment records. • During a December 2010 social work visit, the Veteran reported he was not working much, but he was “helping out at a local doctor’s office with some maintenance.” See December 6, 2010 VA treatment records. • At a February 2011 social work visit, the Veteran reported he was looking for part-time work. See February 7, 2011 VA treatment records. • During an October 2012 neurology consult, the Veteran reported “working night shifts driving a limousine for an adult night club.” See October 2, 2012 VA treatment records. • November 2012 sleep disorder consult lists “jitney driver” as the Veteran’s occupation; Veteran reported he was a nighttime jitney driver. See November 14, 2012 VA treatment records. • The Veteran did not seek vocational assistance until May 2014, when “unemployed” was listed as one of his active issues. See May 15, 2014 VA treatment records. Consequently, the allegation regarding retirement or an inability to work due to his service-connected condition is contradicted by the available record. This does not discount the possibility that the Veteran may have had gaps in his employment or may have engaged in marginal employment during the period on appeal. However, as mentioned supra, the Veteran has not provided any proof of annual income after several requests. Since the Veteran did not provide his updated employer and/or income information, the Board has nothing from which to infer his income was marginal. Based upon the evidence of record, the Board finds the Veteran’s service-connected disabilities are not shown to be so disabling as to preclude him from securing or following substantially gainful employment in keeping with his education and occupational experience. The Board finds that an award of TDIU benefits is not warranted in this case because the Veteran is capable of performing the physical and mental acts required by, at least, sedentary employment. In making this finding, the Board has considered the Veteran’s service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on this issue. Despite the July 2014 VA examiner concluding that the Veteran was functionally limited in his ability to obtain and maintain employment, the record reveals the Veteran was still able to perform – and in fact did – sedentary work like driving and or light to medium activity such as maintaining properties as a handyman. Further, the ability to do sedentary work is consistent with review of the Veteran’s education and work experience. The United States Court of Appeals for Veterans Claims has instructed that “the meaning and relevance of the term [“sedentary employment”] will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each Veteran’s education, training, and work history.” Withers v. Wilkie, 30 Vet. App. 139 (2018). As such, the Board interprets sedentary to mean primarily working in an office-type setting with much of the day seated; noting that since “sedentary” is defined as “[r]equiring or marked by much sitting at a sedentary desk job”, it interprets this definition to mean that the Veteran could work in a job where he primarily sits down. Webster’s II New College Dictionary. Before the Board can rely on a finding that the Veteran is capable of sedentary work to deny TDIU, it must also ensure the finding is consistent with the medical evidence as a whole, and that it is the Board’s “duty to ‘interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.’” Withers, 30 Vet. App. at 148. In this regard, the Veteran has a high school education, but his work history includes ten years of experience being self-employed, in addition to owning a bar and being a service representative. This history indicates the capability for computer technology, managerial and supervisory experience, and customer service experience. Accordingly, the Board finds that the Veteran’s education and work history does not preclude him from undertaking sedentary employment in an office environment and/or administrative capacity, exercising job functions that would not require him to undertake labor intensive work, such as lifting, bending, standing, walking, climbing, and reaching. Following a complete examination and record review, in August 2017, a VA examiner concluded the Veteran’s service-connected conditions, mainly back and lower extremity radiculopathy, did not “impact his ability to work.” He noted the Veteran was still capable of driving, light housekeeping, grocery shop, etc. In other words, the Veteran was capable of light/sedentary employment. Although the Veteran’s service-connected disabilities may interfere with his performance of some types of work, such as labor-intensive roles, the weight of the evidence shows that his service-connected disabilities would not prevent him from obtaining or maintaining substantially gainful employment. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to establish that he or she is unemployable within the meaning of 38 C.F.R. § 4.16. “The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.” Ray v. Wilkie, 31 Vet. App. 58 at 72 (quoting Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993)). Moreover, while the Board should consider the Veteran’s work history, there is no requirement in the applicable regulations that a TDIU is warranted when a veteran is unable to work in the exact type of occupation he or she previously held. While the Board, in no way, minimizes the severity of the Veteran’s service-connected disabilities, after carefully considering all the evidence of record, the Board finds that the Veteran’s service-connected disabilities alone, without consideration of his age and non-service-connected medical problems, would not prevent him from finding and maintaining substantially gainful employment. And again, the current assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. As unemployability due to service-connected disability is not shown, referral for an extraschedular TDIU is also not warranted. The weight of the evidence is against the claim, and the provisions of 38 C.F.R. § 3.102 are not applicable. From November 2017 As noted above, the Veteran was awarded service connection for a heart condition. Just prior to this time period, by the Veteran’s own account, he was “unemployed but seeking employment” and sought resources for assistance from VA social work in job search. See August 2016 VA treatment records. The Veteran worked at least off and on during an unknown amount of time. See January 2020 VA disability exam (noting Veteran reports last worked about “a year ago” and was performing odd jobs and doing light maintenance part-time on and off for years). The Board notes TDIU based on marginal income cannot be considered as no income information is of record due to the Veteran’s own failure to submit documentation. The Board is cognizant that the Veteran was in receipt of Social Security benefits during the appeals period. See September 28, 2017 VA treatment record (noting the Veteran reported being retired and receiving social security benefits). However, under 38 C.F.R. § 4.19, age may not be considered as a factor in evaluating a Veteran’s unemployability. As noted above, just prior to November 2017, a VA examiner in August 2017 concluded the Veteran’s service-connected conditions, mainly back and lower extremity radiculopathy, did not “impact his ability to work.” He noted the Veteran was still capable of driving, light housekeeping, grocery shop, etc. In other words, the Veteran was capable of light/sedentary employment. In January 2020, the Veteran underwent an updated back VA exam. The VA examiner determined the Veteran’s back did not have an impact on his ability to work. Additionally, in January 2020, the Veteran underwent an individual unemployability exam. The Veteran reported he had pain walking, could not lift, and could only carry “a gallon of milk and something else.” He stated he could not carry any other type of weight and had difficulty doing the dishes. The examiner determined that while the Veteran’s service-connected low back condition did impact his ability to obtain and maintain substantial employment in a physical capacity since he is unable to climb, lift, walk long distances, or be on his feet for long periods of time, his low back condition would not preclude him from employment in a sedentary capacity with frequent breaks. As for his lower extremity radiculopathy, although he records intermittent pain, the record shows he has continued to deny numbness, and tingling, or leg weakness. See January 2020 VA Exam; see also June 8, 2020 VA treatment record (noting Veteran denies numbness, tingling, inability to walk, fever, leg weakness, or loss of bladder control). Concerning the Veteran’s cardiovascular disease, the Veteran has never claimed he is unable to find work due to his heart condition; he has based his claim mainly on his low back and pain limitations. However, the 2018 VA examination showed the Veteran was capable of an estimated METs level of >7-10, which is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging (6 mph). Clearly the ability to engage in such activities before experiencing dyspnea means neither light activity nor sedentary employment is precluded. The examiner opined the Veteran’s heart condition did not impact his ability to work. Again, the Board, in no way, minimizes the severity of the Veteran’s service-connected disabilities. However, after carefully considering all the evidence of record, the Board finds that the Veteran’s service-connected disabilities alone, without consideration of his age and non-service-connected medical problems, would not prevent him from finding and maintaining substantially gainful employment. The current assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. Further, as unemployability due to service-connected disability is not shown, referral for an extraschedular TDIU is also not warranted. The weight of the evidence is against the claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.