Citation Nr: 21024417 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 09-22 831 DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran does not have sufficient ratings for his service-connected disabilities to meet the schedular rating requirements for a TDIU, and the preponderance of the evidence is against finding that his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment when considering his level of education, prior work experience and training. CONCLUSION OF LAW The criteria are not met for entitlement to a TDIU, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to January 1971 and had additional service in the Army National Guard. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim back to the RO in January 2012, February 2018, April 2020, and most recently in December 2020 for further development and consideration. That most recent remand was so the claim could be referred to the Director of VA’s Compensation Service to consider whether a TDIU is warranted on an extra-schedular basis. But, in January 2021 the Director responded and issued an advisory opinion finding against granting the Veteran’s claim for a TDIU on an extra-schedular basis, so this claim is again before the Board. The Veteran also has an additional claim for a higher rating for his lumbar spine disability that has been remanded back to the Board from the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). But, as explained in the Board’s March 29, 2021 Appeal Notifications Letter, by law he is being given 90 days from that date to submit additional evidence and/or argument concerning this other claim. And, as the time allotted to do that has not expired, and the Board has not received a written, express waiver of this permissible grace period allowing him this opportunity, this decision will not address this other claim. Entitlement to a TDIU The Veteran contends that he is unemployable owing to his service-connected disabilities and, therefore, entitled to a TDIU.   The issue in a TDIU case is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.     A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Here, however, the Veteran is service connected for lumbosacral strain with degenerative disc disease, rated at 20 percent; left lower extremity radiculopathy associated with lumbosacral strain, rated at 20 percent; and right lower extremity radiculopathy associated with lumbsacral strain, rated at 10 percent. The combined rating for these service-connected disabilities is 50 percent. See 38 C.F.R. § 4.25 (VA’s Combined Ratings Table). Thus, even accepting that all three of his service- connected disabilities derive from common etiology and, in turn, warrant considering them for all intents and purposes as one collective disability, he still does not have the requisite rating to warrant considering his TDIU claim on a schedular basis under § 4.16(a). This was the reason for the Board’s December 2020 remand – that is, to have this TDIU claim considered, instead, on an extra-schedular basis pursuant to the special provisions of § 4.16(b) and initially by the Director of the Compensation Service. As the Board previously explained, it has no legal authority to grant a TDIU on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).   As also already alluded to, the Director since has determined in January 2021 that a TDIU should not be granted on an extra-schedular basis, finding insufficient evidence that the Veteran’s service-connected disabilities prevent substantially gainful employment. There is no restriction on the Board's ability to review the adjudication of an extra-schedular rating once, as here, the Director determines that an extra-schedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). See also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) ("[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction [AOJ] and, as such, is not evidence". The Board conducts a de novo review of the Director's decision.). More recently, however, on March 14, 2019, the CAVC also issued Ray v. Wilkie, 31 Vet. App. 58 (2019) – which, in part, addressed the effect of the Board's referral of a case for extra-schedular consideration when the Board later reviews the Director's decision not to award an extra-schedular disability rating. The Court held that the Board's determination to refer a case for extra-schedular consideration is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." Here, after consideration of the record on appeal, the Board agrees with the Director’s decision that an extra-schedular TDIU is not warranted because the most probative (meaning most competent and credible) evidence does not support finding that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment with consideration of factors such as his prior work experience, training and education. The record establishes that he has a high school diploma and has worked a variety of jobs, including as a security guard, a prison guard, a bus driver, and a gatekeeper at an amusement park. He is currently unemployed.   In Ray, the CAVC held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. In total, the Veteran has undergone VA spine examinations in July 1980, May 1997, July 2008, March 2014, and January 2017. His most recent examination noted functional loss due to pain and fatigue. It also noted that he uses a walker and cane to ambulate. He is unable to do physical or sedentary work requiring sitting for more than half an hour. Overall, his condition presented significant limits with repeated use over time. This is consistent with statements to his medical providers and the Board that his lumbosacral strain caused him difficulties due to pain and fatigue while working as a professional bus driver. However, the record also shows the Veteran’s disability picture is complicated by his non-service-connected disabilities. For instance, he filed a September 2009 provider statement that his long-standing back pain with sciatica made it unsafe for him to drive a commercial vehicle. But that same statement cited cervical spine degenerative disc disease (DDD), headaches, obesity, diabetes, hypertension, obstructive sleep apnea, and bipolar disease as complicating factors also impairing his functionality. Moreover, a second statement dated that same month conceded that the side effects of his psychiatric medication would likewise prevent him from performing his job as a bus driver. His treatment notes also reflect past hospitalizations for psychiatric treatment and more recent stays for diabetic kidney disease.   The Board’s December 2020 decision already considered and denied the Veteran’s claim of entitlement to service connection for his cervical spine disability, including for the DDD affecting this segment of his spine, even as secondary to his already determined to be service-connected lumbosacral spine disability. Thus, his cervical spine disability and all other disabilities not determined to be service connected cannot factor into his purported unemployability. A TDIU is granted when the record shows that a Veteran is rendered unemployable due to circumstances created by his service-connected disabilities. The Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired owing to the service-connected disability. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for a TDIU to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Without “evidence or even an averment of unusual or exceptional circumstances” indicating an inability to perform the physical and mental acts required by employment, to the extent not otherwise contemplated by the ratings assigned for the service-connected disabilities, TDIU is not appropriate. Id. Here, there is no objective indication of exceptional circumstances, meaning above and beyond the impairment in earning capacity that is contemplated by the schedular ratings the Veteran has for his service-connected disabilities. This is not to say the record is absent periods of severe symptoms, such as difficulty getting out of bed during symptom flare-ups, or stiffness and pain causing him to resort to crawling up stairs, as described in his February 2014 records. However, the record does not support a finding that these episodes are normal for him or characterize his condition generally. Rather, these discrete instances of severe symptoms are treated as individual events. These circumstances are contemplated by the Rating Schedule, which accounts for the degrees of disabilities considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. Further, and notably, the record in this case repeatedly offers evidence of the Veteran losing working time due to his non-service-connected disabilities – which, to reiterate, cannot serve as basis or grounds for granting a TDIU since not attributable to his service-connected lumbar spine disability and associated left and right lower extremity radiculopathy. Also, the reports of the Veteran’s VA examinations, available employment information, and treatment notes do not reflect inability to perform a substantially gainful job due to his service-connected disabilities. His January 2017 VA examination found employment limitations only regarding prolonged sitting, which does not preclude sedentary or other types of substantially gainful work. See 20 C.F.R. § 404.1567(a). There also are no employer or other witness statements suggesting that his service-connected disabilities directly hindered or prevented his continued employment. Although the record reflects discomfort and other challenges brought on by his lumbar spine condition, there is no indication that he is precluded from working in a substantially gainful capacity. He was offered several opportunities to provide further evidence regarding his employment history, but he failed to do so. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a Veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Generally, a Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain, receiving medical treatment, or undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). With this in mind, the Board has considered his lay statements regarding his limitations. Unfortunately, however, his lay statements are not supported by his current medical or employment record. There is nothing on record supporting employment loss, accommodations, or other signs of ongoing, unusual circumstances that might merit a TDIU. The Board accordingly finds his statements regarding his employment limitations not sufficiently supported by the record, and not sufficient on their own, probative of the matter. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In sum, while the Veteran clearly has significant functional impairments due to multiple disabilities, his service-connected disabilities, if only considering them, do not preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for' 'interpret[ing] reports of examination in 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 disability present,' 38 C.F.R. § 4.2 (2013)." And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.