Citation Nr: 21025795 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 08-25 014 DATE: April 29, 2021 ORDER Entitlement to a rating in excess of 30 percent for balance and instability due to tardive dyskinesia on an extraschedular basis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected balance and instability due to tardive dyskinesia does not cause marked interference with employment, frequent hospitalizations, or unique and unusual factors that would justify an extraschedular rating. 2. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities prevent the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for balance and instability due to tardive dyskinesia on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1). 2. The criteria for entitlement to a TDIU 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to March 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2013, September 2016 (balance and instability), and April 2014 (TDIU) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue of entitlement to a rating in excess of 30 percent for balance and instability due to tardive dyskinesia on an extraschedular basis in July 2017 for referral to the Director of Compensation (Director) for extraschedular consideration consistent with 38 C.F.R. § 3.321(b)(1). The RO referred the issue to the Director in January 2021. As such, a review of the record shows substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating in excess of 30 percent for a disorder manifested by balance and instability due to tardive dyskinesia on an extraschedular basis. The Veteran is currently assigned an initial 30 percent rating for his service-connected balance and instability due to tardive dyskinesia under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6204 for the entire period on appeal. Under DC 6204, a 30 percent rating is the maximum schedular rating possible. As the Veteran is already in receipt of the maximum schedular evaluation for his balance and instability due to tardive dyskinesia, the issue before the Board is whether a higher extraschedular evaluation is warranted. In exceptional cases, however, schedular ratings may be inadequate. 38 C.F.R. § 3.321(b)(1). The Board cannot assign an extraschedular evaluation in the first instance and must refer the issue to the RO for referral to the Director of Compensation Services. See Anderson v. Shinseki, 23 Vet. App. 423, 428-29 (2009); 38 C.F.R. § 3.321(b)(1). The Court set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. If the Board remands an increased rating claim for referral to the Director for an extraschedular rating, that does not mean an extraschedular rating must be assigned. An initial referral decision addresses whether the evidence is enough to substantiate a reasonable possibility that a schedular rating is inadequate. Thus, the criteria for determining the referral for an extraschedular evaluation provides a lower threshold than whether an evaluation is ultimately warranted. In other words, the Board emphasizes there is a different evidentiary standard for referring a case to the Director for extraschedular consideration compared with the evidentiary standard required to assignment of an extraschedular rating. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2020). In Ray, the United States Court of Appeals for Veterans Claims (Court), in regards to extraschedular TDIU referral found that the initial extraschedular referral decision addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Id. The Director then performs his or her duties and, if the Director denies an extraschedular rating, the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the preponderance of the evidence nevertheless shows that a veteran is unemployable by reason of his or her service-connected disabilities. Id. In Smiddy v. Wilkie, the Court extended the reasoning and holding in Ray to the context of extraschedular rating under 38 C.F.R. § 3.321(b). See Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020). Therefore, in Ray and Smiddy, the Court recognized the evidentiary standard to refer a claim to the Director for extraschedular consideration is lower than granting an extraschedular rating for a service-connected disability. However, the Director’s decision is not evidence, but, rather, the de facto RO decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). The Board has jurisdiction to review the entirety of the Director’s decision and the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Veteran’s representative contends the rating criteria is insufficient to compensate the Veteran for his balance and instability because the evidence of record demonstrates the Veteran has suffered numerous falls and regularly uses a walker due to his balance issues. See March 2021 Third Party Correspondence. The Board finds the evidence does not establish the Veteran’s balance and instability presents such an exceptional disability picture that renders the schedular criteria inadequate. As noted, the Board remanded the Veteran’s case to the RO to be referred for extraschedular consideration in July 2017. The Board emphasized the Veteran’s balance difficulties may significantly impede his ability to ambulate and that marked interference with employment may be present. The Veteran’s VA treatment records demonstrate the Veteran has reported multiple falls throughout the appeal period. For example, in February and March 2012, the Veteran reported he had a worsened gait, reported falling from a chair, and staggers. See February and March 2012 VA treatment records. In October 2014, the Veteran reported falling several times in the previous weeks when he tripped on a walker. See October 2014 VA treatment records. In June 2016, the Veteran reported he fell in the last 12 months and stated his balance was off. See June 2016 VA treatment records. Throughout the appeal period, the Veteran used a cane and a walker. However, there are no reported hospitalizations from any of the falls the Veteran experienced throughout the appeal period. See March 2012 and April 2017 VA treatment records. The Veteran has been afforded several VA examinations throughout the appeal period. A March 2017 VA examination notes the Veteran’s constant use of a cane with some gait imbalance that did not impact his occupational functioning. See March 2017 VA examination. In April 2015, the Veteran reported using a walker due to leg weakness and tripping over his feet with falling was less since using the walker. See April 2015 VA examination. The April 2015 VA examiner determined the Veteran’s condition did not impact his ability to work, and that Veteran is able to perform tasks that are necessary for obtaining and maintaining gainful employment, if accommodated with working in a light sedentary job that, in part, is accommodated with handicap access, and avoids walking on uneven surfaces, inclines and climbing. Id. In September 2016, the Veteran reported continued use of a cane for ambulation due to imbalance and inability to walk in a straight line. See September 2016. However, the September 2016 VA examiner noted the Veteran’s symptoms did not impact his ability to work. Id. In a December 2017 VA examination, the Veteran reported he could not walk in a straight line, wanders side to side, and has been unemployed since 2004. See December 2017 VA examination. The Veteran reported he had a fall the previous year at home but denied falling in the past year despite having the feeling of balance and instability. Id. The VA examiner noted no significant instability was observed and heel to toe walking was slightly unsteady. Id. The VA examiner noted there were no reports of a hospitalization due to a fall. Id. A November 2020 VA examination notes the Veteran’s gait deficits affect ability to stand and walk, takes extended periods to complete tasks that requires standing or walking beyond 5-minute intervals, and symptoms greatly impact his ability to stand and walk affecting his occupational functioning. See November 2020 VA examination. The Veteran reported he regularly uses a cane and a walker for ambulation support; has persistent imbalance and unsteady gait that, in part, makes it difficult to perform all activities of daily living. Id. The VA examiner noted the Veteran has marked imbalance and very unsteady, unable to perform heel to toe walk in a straight line and unable to walk on his heels. Id. The VA examiner noted the Veteran’s balance and instability affects his ability stand and walk. Id. In January 2021, the Director determined the evidence of record did not show that the currently assigned schedular evaluations for balance and instability issues were inadequate due to exceptional or unusual circumstances. See January 2021 VA Memo. The Director noted the objective evidence of record fails to corroborate incapacitating episodes creating marked interference with employment and the evidence does not reveal frequent hospitalizations due specifically to balance and instability issues or treatment for balance and instability issues. Id. Therefore, the Director determined the available medical evidence does not support a higher evaluation on an extraschedular basis for balance and instability issues. Id. After review of the evidence of record, the Board concludes that ultimately an extraschedular evaluation is not assignable in this case. Although the Veteran’s balance and instability caused falls, requires regular use of a cane and walker, and impacts his ability to work in anything except a sedentary job, the Board finds these symptoms are contemplated by the schedular criteria of DC 6204. DC 6204 contemplates dizziness and occasional staggering. The Board notes that in Doucette v. Shulkin, the Court of Appeals for Veterans Claims found that difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017). Here, the Board finds that while tripping, falling, and difficulty walking are not specifically mentioned in the rating criteria for DC 6204, these symptoms are each a manifestation of dizziness and occasional staggering and have been contemplated by the rating criteria. With respect to any marked interference with employment, the Board notes that the issue of entitlement to a TDIU has been bifurcated and discussed below. See Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff’d, 631 F.3d 1380 (Fed. Cir. 2011) (holding that is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). Moreover, the Board finds that the evidence of record does not demonstrate frequent hospitalizations at any time during the appeal period due to the Veteran’s balance and instability. In summary, the Board concludes that the schedular rating criteria reasonably describes the Veteran’s overall disability picture. While the Veteran’s balance and instability causes falls that is not specifically mentioned in the rating criteria, there is nothing exceptional or unusual about the Veteran’s balance and instability due to tardive dyskinesia because the rating criteria reasonable contemplates his disability level and symptomatology. See Thun, 22 Vet. App at 111. For these reasons, the Veteran’s disability picture is adequately, and appropriately, contemplated by the applicable schedular rating criteria. Therefore, an extraschedular evaluation is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a TDIU. The Veteran submitted an application for TDIU on June 6, 2013. The RO initially denied the issue of entitlement to a TDIU in the April 2014 rating decision on appeal. The Veteran asserts that he is entitlement to a TDIU due to his service-connected major depressive disorder and tardive dyskinesia. See June 2013 VA Form 21-8940; September 2013 Report of General Information. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” 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,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether a TDIU is warranted, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA adjudicator, not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. In some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). The veteran may receive a total (100 percent) rating based on a combination of his service-connected disabilities, or for a single service-connected disability. Special monthly compensation (SMC) may be warranted in addition to his regular compensation if the veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the veteran’s total rating is based on a combination of his service-connected disabilities, (which by definition would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability, in turn making the veteran eligible for SMC. If, however, he has a single disability rated at 100 percent, entitlement to TDIU becomes moot, because he has already met that portion of the requirement for SMC. Prior to April 2, 2015 As noted, the Veteran’s application for entitlement to a TDIU was received on June 6, 2013. The Board also finds that assignment of a TDIU is not warranted prior to April 2, 2015. In that regard, the Board notes the Veteran was service-connected for major depressive disorder, rated as 70 percent; tardive dyskinesia, rated as 30 percent; and balance and instability due to tardive dyskinesia, rated as 30 percent. The combined rating was 90 percent. With respect to the Veteran’s service-connected major depressive disorder, SSA records demonstrate the Veteran’s report that his major depressive disorder causes problems with sleeping, memory loss, and moodiness. See May 2009 SSA Disability Report. SSA records also demonstrate the Veteran’s mental disabilities, including major depressive disorder, manifested in a moderate degree of limitation for restriction of activities of daily living, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace. See June 2009 Psychiatric Review. The Veteran was afforded a VA examination in February 2014. The Veteran reported his prior work history included working as a cab driver, construction worker, paramedic, pharmacy technician, pet shop owner, bird store owner, and that he worked at Petco before a back injury left him unemployed. See February 2014 VA examination. At that time, the Veteran reported that he felt that it was possible that he could further acquire additional coping skills to be able to better manage a greater amount his symptoms. Id. The VA examiner noted the Veteran had good cognitive skills and awareness, modest past difficulties in ability to function in a social/interpersonal environment, and for at least short periods of time, his psychological functioning did not appear to be a constant impediment to his employability. Id. The VA examiner noted the Veteran’s major depressive disorder was manifested by occupational and social impairment with reduced reliability and productivity. Id. The VA examiner concluded that the Veteran was psychologically employable, would be able to function within a low-pressure job, and could most likely perform better in a relatively quiet, minimal stress work environment with restricted lifting. Id. The Veteran was afforded another VA examination in March 2015. The VA examiner noted the Veteran’s major depressive disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. See March 2015 VA examination. The VA examiner noted the Veteran’s speech was within normal limits; thought process was linear, logical, and goal directed; capable of managing his financial affairs; and there were no indications of derailment or any bizarre behavior. Id. The VA examiner concluded that the Veteran’s major depressive disorder would not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. Id. With respect to the Veteran’s tardive dyskinesia prior to April 2, 2015, the Veteran was previously afforded a VA examination in March 2012. At that time, the Veteran’s symptoms related to his tardive dyskinesia included lip and tongue movements, smacking, other involuntary body movements, and gait imbalance. See March 2012 VA examination. The VA examiner noted the Veteran’s tardive dyskinesia did not impact his ability to work. Id. The Veteran also reported previously experiencing falls with no injuries, and staggering. See March 2012 and June 2012 VA treatment records. In June 2012, the Veteran reported developing slurring of his speech. See June 2012 VA treatment records. In July 2014, the Veteran reported use of a cane to prevent falls, occasional slurring, and dizziness. See July 2014 VA treatment records. In October 2014, the Veteran reported falling several times since he fell on a bus when he tripped on a walker. See October 2014 VA treatment records. The Veteran was afforded a VA examination in April 2015. The VA examiner noted the Veteran’s report that he previously had difficulty performing job duties due to chronic lower back pain, and eventually stopped working in October 2004 due to lower back pain. See April 2015 VA examination. The VA examiner noted the Veteran’s report that his tardive dyskinesia became slightly worse with leg weakness and speech since the previous March 2012 VA examination. The VA examiner noted the Veteran was given a walker in February 2015 which the Veteran claimed he did not need but would continue using a cane. Id. The VA examiner noted a February 2015 VA clinical note demonstrated the Veteran’s report that he did not have a problem with falls at the time. Id. The VA examiner concluded that the Veteran’s service-connected tardive dyskinesia did not prevent the Veteran from obtaining and maintaining gainful employment, if accommodated with working in a light sedentary job and handicap access. Id. The Board is cognizant of the holding in Withers v. Wilkie, 30 Vet. App. 139, 147-49 (2018) that if the Board relies on an examiner’s conclusion that a veteran is capable of sedentary work in denying TDIU, it must determine the meaning of sedentary work “from the particulars” of the opinion and explain how it interprets the examiner’s use of the term. In keeping with the holding in Withers, the Board notes that the Merriam-Webster online dictionary defines “sedentary” as (a) doing or requiring much sitting, or (b) not physically active. See https//www.merriam-webster.com/dictionary/sedentary. In light of the language used by the VA examiner, the Board interprets sedentary work in this case to be work that does not require any significant walking, standing, or physical activity. However, and significantly, the Board has not reached its decision solely because the VA examiner used the term “sedentary work.” Instead, the Board has considered the functional limitations presented in the record and how the concept of sedentary work figures into the Veteran’s overall disability picture and vocational history. In that regard, the notes the April 2015 VA examiner considered the Veteran’s symptoms of tardive dyskinesia prior to April 2015, which the Veteran reported slightly worsened since the previous March 2012 VA examination, and ultimately concluded the Veteran was able to perform the necessary tasks to obtain and maintain substantial gainful employment with accommodations. The February 2014 and March 2015 VA examiners concluded the Veteran’s major depressive disorder would not preclude the Veteran from obtaining and maintaining substantially gainful employment. In sum, the Board does not dispute that the Veteran’s service-connected disabilities would impact his ability to work prior to April 2, 2015; however, the Veteran’s overall disability picture does not show that he was precluded from substantially gainful employment due to any of his service-connected disabilities prior to April 2, 2015. The Veteran’s medical records demonstrate the Veteran had the mental and physical capacity to perform occupational duties, including sedentary occupations. As such, the Board finds that the weight of the evidence of record is against finding that the Veteran is unable to obtain or retain substantially gainful employment prior to April 2, 2015. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. From April 2, 2015 In this case, effective April 2, 2015, the Veteran is service connected for major depressive disorder, rated as 70 percent; tardive dyskinesia associated with major depressive disorder, rated as 30 percent; balance and instability due to tardive dyskinesia, rated as 30 percent; right upper extremity akathisia associated with tardive dyskinesia, rated as 40 percent; left upper extremity akathisia associated with tardive dyskinesia, rated as 30 percent; right lower extremity akathisia associated with tardive dyskinesia, rated as 20 percent; left lower extremity akathisia associated with tardive dyskinesia, rated as 20 percent’ and fascial tics associated with tardive dyskinesia, rated as 10 percent. As discussed above, the issue of entitlement to a TDIU is not moot, even with the grant of a 100 percent disability rating, where it can assist a veteran in obtaining SMC. From April 2, 2015, the Veteran is in receipt of a combined 100 percent disability rating. Thus, entitlement to a TDIU during this period must be based on one of the service-connected disabilities, in this case, either the Veteran’s major depressive disorder or tardive dyskinesia with associated balance and instability, akathisia of the bilateral upper and lower extremities, and fascial tics. In this case, the Board finds that an entitlement to a TDIU is not warranted for a single service-connected disability, or a combination of service-connected disabilities from April 2, 2015. In that regard, the Board notes the Veteran last worked in October 2014 at Petco as an animal specialist. See June 2013 VA Form 21-8940. The Veteran reported he completed three years of high school and completed paramedic training in June 1984. Id. The Veteran also reported that he did not leave his last employment due to his service-connected disabilities, including major depressive disorder and tardive dyskinesia. Id. The Veteran’s prior work experience also includes bird specialist, pet store owner/operator, and assembler. Id.; see Social Security Administration (SSA) Work History Report received in August 2015. With respect to the Veteran’s major depressive disorder, the Veteran was afforded a VA examination in April 2015. At that time, the Veteran reported difficulty performing job duties due to chronic lower back pain, stopped working in October 2004, and cannot work due to his age, speech, and using a walker. See April 2015 VA examination. However, the Veteran is not service connected for a low back disability. The Veteran also reported that he attends group therapy regularly for recurrent, moderate, major depressive disorder. See April 2015 VA examination. The VA examiner noted the Veteran’s mental health condition did not result in gross impairment in though processes or communication. Id. VA treatment records from April 2, 2015 do not indicate or demonstrate the Veteran is unable to maintain substantially gainful employment. For example, the Veteran’s VA treatment records demonstrate the Veteran has the mental capacity to pursue hobbies, volunteering, and ability to manage his finances. See November 2015, May 2018, September 2018, May 2019, and September 2020 VA treatment records. Additionally, the Veteran’s major depressive disorder is in remission. See June 2020 and September 2020 VA treatment records. With respect to the Veteran’s tardive dyskinesia, the Veteran reported that his condition prevents him from keeping sustainable employment. See September 2013 Report of General Information. The Veteran was afforded a VA examination in April 2015. At that time, the Veteran presented with symptoms including intermittent movements of the lips and tongue, with normal vocalization in tone and intensity. See April 2015 VA examination. The Veteran’s speech was coherent, no speech slurring or utterances noted. Id. Ambulatory gait was hesitant, and the Veteran declined to heel/toe due to perceived loss of balance. Id. The Veteran also had subjective lower extremity weakness and used a cane and walker for balance and lower extremity weakness. Id. The VA examiner concluded that the Veteran was able to perform tasks that are necessary for obtaining and maintaining gainful employment, if accommodated with working in a light sedentary job which does not require frequent public interaction or phone conversations, and has handicap access. Id. The Veteran was afforded a VA examination in September 2016. The Veteran reported symptoms including abnormal, uncontrollable movement of the legs, facial ticks and twitches, and abnormal garbled speech. See September 2016 VA examination. The Veteran reported continuing to use a cane and walker for ambulation due to imbalance and inability to walk in a straight line. Id. The VA examiner described impact on the Veteran’s ability to work as functional limitations of verbal communication and ambulating without an assistive device. Id. The VA examiner noted that it may be difficult for the Veteran to gain employment due to facial ticks and uncontrollable movements in his upper and lower extremities. Id. However, the VA examiner did not offer an opinion regarding whether the Veteran would be able to do any sedentary work. In December 2017, a VA examiner noted the Veteran had subjective symptoms of balance and instability and his condition impacts his ability to work. See December 2017 VA examination. The VA examiner noted there was no significant instability observed when the Veteran walks with a cane. Id. However, the VA examiner to did not address whether the Veteran’s balance and instability prevents the Veteran from obtaining and maintaining substantially gainful employment. Additionally, the VA examiner noted the symptoms of the Veteran’s balance and instability could not be clearly delineated from the service-connected akathisia of the bilateral upper and lower extremities. See December 2017 VA examination. The VA examiner noted the Veteran’s akathisia symptoms are mainly at rest and at night. Id. In November 2020, a VA examiner noted the Veteran’s reports of symptoms, including involuntary leg movements, facial ticks with eye twitches, abnormal speech, persistent imbalance and unsteady gait, and regular use of a cane and walker. See November 2020 VA examination. The Veteran also reported his symptoms make it difficult to perform all activities of daily living, cause him a great deal of embarrassment, and feels that he has increased weakness in the legs. Id. The VA examiner noted the Veteran was unable to perform heel/toe walk in a straight line, unable to walk on his heels, and repetitive tongue thrusting and movement were noticeable throughout the examination. Id. The VA examiner noted the Veteran’s symptoms slow him down and he is less efficient with decreased productivity levels. Id. The VA examiner noted the Veteran is adversely affected and unable to function ideally in any capacity as his speech and gait deficits greatly affect his ability to stand, walk, and communicate with others, and he tends to take extended periods to complete any tasks that require standing or walking beyond 5-minute intervals. Id. However, the VA examiner did not address whether the Veteran would be able to perform sedentary work with accommodations as described in the April 2015 VA examination. As discussed above, the Board interprets sedentary work in this case to be work that does not require any significant walking, standing, or physical activity. However, and significantly, the Board has not reached its decision solely because the VA examiner used the term “sedentary work.” Instead, the Board has considered the functional limitations presented in the record and how the concept of sedentary work figures into the Veteran’s overall disability picture and vocational history. In that regard, though the Veteran’s prior work experience required walking, standing and some physical activity, the April 2015 VA examiner concluded the Veteran’s tardive dyskinesia would not prevent the Veteran from performing sedentary work. Though the September 2016 and November 2020 VA examiners noted the Veteran’s difficulty with speech that would impact his ability to work and communicate with others, the April 2015 VA examiner noted the Veteran could be accommodated with working in a light sedentary job which does not require frequent public interaction or phone conversations. Additionally, as discussed above, the evidence of record does not demonstrate that the Veteran’s balance and instability results in marked interference with employment. See January 2021 VA Memo. Moreover, there is no indication the Veteran’s major depressive disorder prevents the Veteran from obtaining and maintaining substantial employment in a sedentary job. There is no evidence indicating symptoms of the Veteran’s major depressive disorder have worsened or that the findings in the prior February 2014 and March 2015 VA examinations have changed at any time from April 2, 2015. Finally, the evidence of record demonstrates the Veteran stopped working his last job due to a nonservice-connected disability, a low back condition, rather than service-connected major depressive disorder or tardive dyskinesia. In sum, the Board does not dispute that the Veteran’s service-connected disabilities would impact his ability to work, including physical limitations and communicating; however, the Veteran’s overall disability picture does not show that he is precluded from substantially gainful employment due to any of his service-connected disabilities from April 2, 2015. The Veteran’s medical records demonstrate the Veteran has the mental capacity to perform occupational duties, including sedentary occupations with accommodations as described in the April 2015 VA examination. (Continued on the next page)   As such, the Board finds that the weight of the evidence of record is against finding that the Veteran is unable to obtain or retain substantially gainful employment due to a single service-connected disability, or in combination of service-connected disabilities from April 2, 2015. Since the Veteran is in receipt of a combined 100 percent disability rating from April 2, 2015, and entitlement to a TDIU is not warranted for a single disability, the Board ultimately finds that the issue of entitlement to a TDIU from April 2, 2015 is moot. See Bradley, 22 Vet. App. at 294; Buie, 24 Vet. App. at 250. Accordingly, the claim for entitlement to a TDIU from April 2, 2015 is denied. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.