Citation Nr: 21024867 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-23 706 DATE: April 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for a TDIU and a referral for consideration of a TDIU on an extraschedular basis is not warranted as the Veteran’s service-connected disabilities were not shown to result in an inability to obtain or maintain substantially gainful employment. CONCLUSION OF LAW 1. The criteria for entitlement to a total disability rating, to include referral for consideration of a TDIU on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1982 to October 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a VA Regional Office (RO). By way of background, this matter was most recently before the Board in February 2021. At which time, the Board granted service connection for a low back disability and remanded the issue of entitlement to a TDIU pending the RO’s assignment of a disability rating. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran generally contends that his service-connected disabilities have prevented him from working since 2010. However, the evidence of record indicates that his degenerative arthritis of the lumbar spine is the primary disability at issue. Currently, the Veteran is service connected for degenerative arthritis of the lumbar spine at 20 percent, tinnitus at 10 percent, and bilateral hearing loss rated noncompensable. The Veteran’s total combined disability rating as effective July 25, 2011, is 30 percent. Therefore, at no time during the appeal period has the Veteran met the schedular criteria for a TDIU. The Veteran does not have a single service-connected disability ratable at 60 percent or more. None of the Veteran’s disabilities were rated at 40 percent or more and there is not a not a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, where percentage requirements of section 4.16(a) are not met, if the evidence establishes that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board’s sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. 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). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). For reasons outlined below, the Board finds referral for extraschedular consideration not warranted here because the preponderance of the evidence does not support the Veteran was unable to maintain substantially gainful employment due solely to service-connected disabilities. The Veteran’s educational history includes a high school education. His military occupational specialty was Cannon Crewman. His post-service employment history includes work as a water proofer, painter, and project manager. His most recent employer confirmed that he last worked in December 2010 and he was terminated because his leave had expired and was unable to return to work. Buddy statements submitted in 2012 indicate the Veteran has suffered from back pain since separation of service. During which time, the pain was described as constant especially whenever the Veteran bent over or stood for too long requiring the use of pain medications. Nonetheless, the Veteran “dealt with it” and continued to work through his pain. See Buddy Statements from S.J., B.F., K.L., and M.J. from 2012. Several VA treatment records document that the Veteran continued to experience back pain. In May 2017, the Veteran complained of back pain with an intensity level of 8 out of 10 which had gotten worse over the past several months. He further reported not working for the “last several weeks”. However, the Veteran also reported he was able to function effectively on the current treatment he was receiving. See Primary Care notes May 2017. An August 2019 mental health primary care note once again noted the Veteran’s reports of chronic back pain. The Veteran described the pain as “like a knife” in the back with an intensity of 7 or 8 out of 10. History of the Veteran’s back pain included reports that since 2010, he has experienced a gradual increase in pain made worse with walking. Lastly, it was noted that the Veteran was currently unemployed. VA treatment records further reflect that the Veteran also has nonservice-connected disabilities of sleep apnea, obesity, Barratts esophagus, ulcerative esophagitis, hypertension, chronic obstructive lung disease (COPD), hyperlipemia, and atypical depressive disorder. See March 2020 CAPRI. Social Security Administration (SSA) records from May 2015 indicate the Veteran was found not disabled in his application for disability benefits. Although findings from SSA constitute probative evidence with respect to a TDIU claim, the Board notes they are not dispositive or binding on VA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In March 2012, the Veteran was afforded a VA examination for his bilateral hearing loss and tinnitus. At which time, the examiner opined that the Veteran’s bilateral hearing loss and tinnitus had no functional impact. In September 2020, a VA examination for the Veteran’s bilateral hearing loss and tinnitus was once again performed. At which time, the examiner opined that the Veteran’s hearing loss and tinnitus had no impact on ordinary conditions of daily life, including the ability to work. In October 2020, the Veteran was afforded a VA examination for his lower back condition. At which time, the examiner diagnosed the Veteran with degenerative arthritis of the spine. During the examination, the Veteran reported experiencing severe pain most of the time in his back. He further stated that “without medication and spinal shots” he believed he would be in a wheelchair. Flare ups were also reported which occur almost all the time precipitated by overuse. The Veteran indicated that his flare ups are moderate to severe in nature lasting a few days and are so painful that he is required to lay down for a few hours. Upon physical examination, the examiner noted that the Veteran had no guarding or muscle spasms nor was there evidence of muscle atrophy. Muscle strength was normal as well as the results of sensory testing. Straight leg testing was negative with no other evidence of radiculopathy. The examiner also noted that there was no ankylosis of the spine, no other neurologic abnormalities, and no intervertebral disc syndrome (IVDS). It was noted that the Veteran did occasionally use a cane and walker. Ultimately, the examiner opined that the Veteran’s degenerative arthritis of the lumbar spine would require “avoidance of work environments that require repeated bending and lifting over 10 pounds, standing or walking over 30 minutes without rest, use of heavy machinery or unprotected heights [] to avoid aggravation of pain and increased risk of falls”. In rendering a closer examination of the evidence, the Board finds the evidence does not support TDIU. See Ray, 31 Vet. App. 58 (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). The Veteran is not currently employed however, the evidence of record does not support a finding that he is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities alone. The preponderance of the evidence supports that he is able to engage in sedentary employment, despite the functional limitations of his service-connected disabilities. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of “sedentary employment.” Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, “the meaning and relevance of the term 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.” Id. at 149-150. See also Rouse v. McDonough, No. 19-5699 (2021), which confirmed the holding in Withers and declined to compel VA to adopt the definition of “sedentary work” or “sedentary employment” used by the Social Security Administration. Here, the Veteran’s education, training, and work history demonstrate that he has the capacity to engage in sedentary occupations such as project manager and supervisor which primarily involve activities such as sitting at a desk; performing clerical work; using a telephone; meeting with constituents; and performing other supervisory duties. The Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. Although the Veteran has stated that he can no longer perform the job requirements of a painter or water proofer due to his back pain, limited ability to engage in lifting objects over 10 pounds, and to stand or walk for prolonged periods, these limitations would not preclude occupations which are primarily sedentary. He has noted that the amount of time he can sit in one sitting is limited as he needs to stand up and move around frequently to prevent aggravation of his back pain. As such, occupations requiring constant sitting (i.e. vehicle operator) would be precluded, however, engaging in general office work would not prevent the Veteran from getting up from a sitting position and moving around frequently. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. The Veteran however is not service connected for any disability which impacts his mental functioning. He also has not contended that his service-connected disabilities affect his mental abilities. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran has not alleged, nor has he provided evidence that any employment he has had was marginal in nature. The Board does not doubt that the Veteran’s service-connected disabilities cause impairing symptomatology. This impairment of function is recognized by the ratings assigned to each of his service-connected disabilities. The evidence does not support that these disabilities preclude substantially gainful employment, specifically to include sedentary employment as outlined above. Additionally, the Veteran has other impairing nonservice-connected disabilities. As noted above, consideration cannot be given to the impairing effects of nonservice-connected disabilities. In light of the Veteran’s past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran is capable of substantially gainful employment. Accordingly, a remand for referral of consideration of a TDIU on an extraschedular basis is not warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.