Citation Nr: 21024659 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-14 621A DATE: April 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from March 16, 2010, to June 17, 2013, is denied. FINDING OF FACT From March 16, 2010, to June 17, 2013, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) for a TDIU and the preponderance of the evidence shows that the adverse symptomatology caused by the Veteran’s service-connected low back strain, hemorrhoids, tinnitus, and right ear hearing loss is both contemplated and consider by the rating criteria. CONCLUSION OF LAW From March 16, 2010, to June 17, 2013, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1977 to November 1987. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2013 regional office (RO) decision. It was previously before the Board in December 2018, May 2020, and November 2020. By way of history, the record shows the Veteran was granted a total rating beginning June 17, 2013. In November 2020, the claim of entitlement to a TDIU on an extraschedular basis was remanded for the RO to refer the claim to the Director of Compensation and Pension (Director). In January 2021, the Director denied the claim and later in January 2021 a Supplemental Statement of the Case was issued. This matter is now before the Board The TDIU Claim The Veteran has raised the issue of entitlement to a TDIU from March 16, 2010, to June 17, 2013. He asserts, in substance, that his service-connected disabilities prevent substantial employment during this time. In this regard, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). Furthermore, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 4.16(b). The central question is “whether the [V]eteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). It is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). i. 38 C.F.R. § 4.16(a) From March 16, 2010, to June 17, 2013, the Veteran was service connected for Low Back Strain at a 10 percent disability rating from March 16, 2010, which was increased to 20 percent on November 5, 2010; Hemorrhoids at a 10 percent disability rating, Tinnitus at a 10 percent disability rating from November 5, 2010, and Right Ear Hearing Loss at a non-compensable disability rating. Given the above ratings, the Board finds that the Veteran at no time from March 16, 2010, to June 17, 2013, does he have two or more service-connected disabilities with one disability rated at 40 percent or higher with his combined rating being 70 percent or higher. Consequently, prior to June 17, 2013, the Veteran did not meet the schedular TDIU requirements according to 38 C.F.R. § 4.16(a). ii. 38 C.F.R. § 4.16(b) The next question for the Board to consider is 38 C.F.R. § 4.16(b). In this regard, entitlement to a TDIU still may be granted, instead, on an extra-schedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates “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.” Id. In this regard, in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. Tellingly, and as noted in the introduction, the Board previously remanded this issue in November 2020 for referral to the Director. At that time, the Board found the Veteran’s ability to perform the job for which he was trained and skilled was severely limited by his service-connected disability from March 16, 2010 to June 17, 2013. Upon remand, the Director determined in a January 2021 that a TDIU on an extra-schedular basis (from March 16, 2010, to June 17, 2013) was not warranted. The Board is not bound by the Director’s January 2021 determination. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extra-schedular consideration). The Board is also not bound by the prior November 2020 remand directive to refer the matter for Director review. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the Board’s referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). In Ray v. Wilkie, the Court recognized that a referral decision under 38 C.F.R. § 4.16(b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. 31 Vet. App. 58. As to whether the record shows if the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities from March 16, 2010, to June 17, 2013, the appellant reports he last worked full-time as a truck driver ending December 5, 2008, due to effects of a back condition. He has a high school education. Moreover, Social Security Administration (SSA) records show he was found to be under a disability for SSA purposes effective July 26, 2012. SSA considered disorders of the back and affective mood disorder, the latter of which is not a service-connected disability. However, VA is not bound by SSA determinations as both agencies have different unemployability criteria; moreover, SSA can consider all of the Veteran’s impairments, whereas VA is limited to only service-connected disabilities. In September 2010 the Veteran began receiving Veteran Rehabilitation and Employment (VR&E) services. He reported he was unable to work as a truck driver due to his back flair-ups and hemorrhoids. A VR&C counselor indicated the Veteran’s inability to find work was due to a combination of his skills not being consistent with his interests, aptitudes, and disabilities, along with a weak local labor market for his skills. A November 2010 report indicated the Veteran was able to work with small breaks and another report the same month indicated he had no issues with physical tolerance. In September 2011, the Veteran’s VR&E was discontinued, purportedly due to health conditions, although which health conditions were not noted. March 2013 VR&E records indicate the Veteran had reported his disabilities had improved since he had previously had to discontinue the program and the disabilities were now stable. The Veteran also indicated he was able to work an 8-hour day and had the ability to show up for work on a regular basis. An April 2013 VR&E records notes that although quit his job as a truck driver due to stronger pain medication for his back, he had good work ethic, and a strong need to find employment. He was entered into the program and it was determined to have a vocational goal that was currently feasible. An examination report dated January 2011 noted the Veteran has not been able to continue functioning in his usual occupation as a truck driver. He reported he stopped working due to his back problem and other health problems and has been out of work for 2 years. The examiner stated the Veteran could work 60 to 90 minutes without back pain, can sit for about 90 to 120 minutes without back pain, and can stand for 90 to 120 minutes without having to change position. Another examination in May 2012 shows the Veteran has been diagnosed with hemorrhoids since 1980, coronary artery disease with stents and heart failure from 2007, diabetes mellitus type 2 since 2007, lumbosacral strain and hearing loss. The examiner stated that the Veteran’s non-service-connected coronary artery disease (CAD) with stents and heart failure are permanently disabling conditions that have functional impairments that most limit his employment. The examiner further commented only the CAD with stents and heart failure with persistent dyspnea would affect employment with physical work and would not preclude sedentary work that would not require any lifting or heavy work. The Veteran’s service-connected chronic lumbar strain was noted by the VA examiner as having functional impairments noted as normal X-rays, near normal physical exam, and almost normal range of motion noting flexion of spine is 0-70 with pain and all other parameters being normal. Further, it was noted that this condition would prevent the Veteran from returning to his job as a truck driver as he takes narcotics intermittently throughout the day for chronic pain, it would not be safe for him to do this job, and he would not be able to renew his CDL license. Although outside the period for which TDIU is being considered, it is also noteworthy that a SSA examination in February 2014 noted the Veteran was capable of occasionally lifting 20 pounds as well as could stand or walk for up to 6 hours of an 8 hour day and sit for 6 hours of an 8 hour day with normal breaks. The Veteran submitted an alternative functional assessment completed by a private physician and vocational consultant with his July 2016 Appellate Brief. However, these assessments do not appear to relate to the period for which TDIU is being considered; and further, include disabilities for which the Veteran was not service connected during the period reviewed. Therefore, they are not probative to the issue being adjudicated. See Owens, supra. Overall, the record indicates that when only considering the Veteran’s service-connected disabilities, he was physically restricted to lifting small amounts of weight occasional and needed to alternate between sitting and standing while working. He was capable of sustain work and study during his VR&E session until an unspecified health condition limited him. Examinations close in time with initial discontinuance of VR&E in 2011 suggest the most limiting condition was the Veteran’s CAD, a non-service-connected condition. See Owens, supra. After some improvement, the record shows the Veteran was able to return to VR&E and reported an ability to work a fulltime job. The improvement, based on examinations, was not to his service-connected conditions which remained the same or worse in terms of functional loss over the same period. The Veteran was not service-connected for any mental disorders during this time but did report some mental side-affects from his pain medication. The record shows that this medication impaired the Veteran’s judgement and ability to perform complex mental tasks as well as resulted in some lethargy or sleepiness. However, even with these side effects, the above physical capabilities were present. See Owens, supra. One VR&E report suggests the available occupations were not aligned with the Veteran’s interests; however, that is not a consideration in determining unemployability. In this regard, the Board also finds it significant that the adverse symptomatology complained of by the Veteran and/or confirmed on examination at the September 2010, December 2010, and August 2011 VA back examinations (i.e., pain, tenderness, and lost motion), May 2012 VA hemorrhoids examination (i.e., some blood and taking over the counter medication), and January 2012 audiological examination (i.e., ringing in his ears and difficulty hearing) as well as during his VR&E sessions and in the other medical evidence of record, which are the reasons the Veteran claims he was unable to work, including in his former occupation as a truck driver, from March 16, 2010, and June 17, 2013, are contemplated by the rating criteria. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, 4.85, 4.87, 4.114, Diagnostic Codes 5237, 6100, 6260, 7336; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); Burton v. Shinseki, 25 Vet. App. 1 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011); Also see Owens, supra. Specifically, the rating criteria for the Veteran’s service-connected disabilities provide a 10 percent rating and a higher 20 percent rating for the back pain, tenderness, stiffness, weakness, and lost motion, provides a 10 percent rating for caused by hemorrhoids, provides a 10 percent rating for ringing in the ears due to tinnitus, and, non-compensable disability rating for right ear hearing loss. Id. In summary, the Board finds that adverse symptomatology complained of by the Veteran and/or confirmed on examination in September 2010, December 2010, August 2011, January 2012, and May 2012 as well as during his VR&E sessions and in the other medical evidence of record are contemplated by the rating schedule. Id. Therefore, because the adverse symptomatology caused by a Veteran’s service-connected disabilities are contemplated and adequately compensated for by the rating criteria, the Board finds that notwithstanding the many problems his service-connected disabilities caused with employment from March 16, 2010, and June 17, 2013, including his former occupation as a truck driver, the Board finds that the preponderance of the evidence shows that the appellant does not meet the criteria for an extraschedular award due to these disabilities at any time from March 16, 2010, and June 17, 2013. Id. Conclusion The findings above are not meant to suggest that the Veteran did not have problems with his service-connected low back strain, hemorrhoids, tinnitus, and right ear hearing loss from March 16, 2010, and June 17, 2013. Overall, the evidence indicates that the Veteran’s service-connected disabilities would cause problems with many occupations, including his former occupation as a truck driver. However, if there were no problems, there would be no basis for the any compensation during this time period. The question considered above is whether the Veteran’s is entitled to an extraschedular award at any time from March 16, 2010, and June 17, 2013. In this regard, the Board finds that despite the above problems the preponderance of the evidence shows that the adverse symptomatology caused by the Veteran’s service-connected low back strain, hemorrhoids, tinnitus, and right ear hearing loss do not meet the criteria for an extraschedular award at any from March 16, 2010, and June 17, 2013, because his only adverse symptomatology is both contemplated and consider by the rating criteria. See 38 C.F.R. §§ 4.16(b), 4.71a, 4.85, 4.87, 4.114, Owens, supra; Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). Extensive evaluation of this problem has been undertaken. Accordingly, the Board finds that the claim for a TDIU is denied at all times from March 16, 2010, and June 17, 2013. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; Owens, supra; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In reaching the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim the Board finds that the doctrine is not for application. See also, e.g., Ortiz, supra; Gilbert, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.