Citation Nr: 21027359 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-29 040 DATE: May 5, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) on an extraschedular basis prior to February 4, 2017 is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to February 4, 2017. CONCLUSION OF LAW The criteria for an extraschedular TDIU rating were not met prior to February 4, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to January 1973. The Veteran submitted a statement indicating that his back injury prevented him from employment, which was received August 2, 2011. The Veteran submitted VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), which was received on March 8, 2012. In a November 2018 Board of Veterans' Appeals (Board) decision, the Veteran was awarded TDIU, effective February 4, 2017. The within matter was remanded and referred to the Director of Compensation Service for consideration of the assignment of TDIU on an extraschedular basis prior to February 4, 2017. The Director performed an administrative review for extraschedular consideration of TDIU in June 2020 and determined that evidence was not found to support entitlement to TDIU prior to February 4, 2017. The matter was then returned to the Board for adjudication herein. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to February 4, 2017. The Veteran was service-connected for a lumbar spine strain with spondylolysis and degenerative joint and disc disease (40 percent disability rating from June 27, 1997); and left-sided radiculopathy with S1 sensory loss of the left leg associated with the Veteran's lumbar spine disability (20 percent disability rating from September 29, 2010). Thus, the Veteran had a combined disability rating of 50 percent during the relevant period prior to February 4, 2017. It is noted that the Veteran's medical history contains treatment for multiple nonservice-connected disabilities, including left knee osteoarthritis, diabetes, a history of heart attacks, substance abuse disorders, and depression, which cannot be considered for purposes of TDIU. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). In this instance, the matter was already referred to the Director of Compensation Service in the November 2018 Board remand. The Director performed an administrative review for extraschedular consideration of TDIU in August 2020 and determined that evidence was not found to support entitlement to TDIU prior to February 4, 2017. The United States Court of Appeals for Veterans Claims (Court) has determined that the Board's initial finding that extraschedular referral is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the decision to award an extraschedular rating. See Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). The Court also held that referral under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular rating. Id. Accordingly, the Board is able to consider extraschedular TDIU on the merits herein and is not bound to any particular outcome. Although the Board finding herein denying entitlement to extraschedular TDIU may appear to be inconsistent with the November 2018 Board remand, which found that referral to the Director for extraschedular TDIU consideration was warranted, the November 2018 Board remand made no conclusion regarding the Veteran's ability to perform substantially gainful employment. Rather, referral to the Director was based on evidence that the Veteran "may" have been unable to secure or follow substantially gainful employment due to service-connected conditions. Thereafter, the Director made a finding consistent with the Board's conclusion herein, as noted above. The Board's finding in the present decision is supported by the evidence, as detailed below. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled 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, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. at 73. 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 his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing and following substantially gainful employment prior to February 4, 2017. The reasons follow. In the Veteran's statement received in August 2011, he indicated that he experiences chronic back pain that limits his mobility and activities of daily living. Imaging of the Veteran's spine in 2011 showed worsening multilevel degenerative disc disease with disc bulging and mild central canal stenosis at L2-L3 with bilateral neural foraminal stenosis at L2-L3, L3-L4, L4-L5, and L5-S1. Multiple treatment records during this period showed the Veteran to be able to ambulate independently. In an August 2011 examination report, the Veteran's forward flexion of the lumbar spine was 80 degrees In September 2011, the Veteran sought treatment for his nonservice-connected left knee disability, indicating that he had weakness, that his left knee did not want to walk when he gets up from a chair, and that he had to use a cane. However, the Veteran was noted to be independent in activities of daily living and gait. He reported that he walks a lot, goes to the grocery store, visits family, and preaches. The Veteran underwent a VA examination of his spine in March 2012. He recorded an abnormal gait and reported occasional use of a cane, but with no incapacitating episodes. He indicated that he could not stand for long periods of time due to foot pain caused by his nonservice-connected diabetes, and further claimed that he is computer illiterate. The Veteran's forward flexion of the lumbar spine was again 80 degrees (as it was in August 2011). The Veteran stated that he has pain in his lower back with walking more than one block, sitting more than 30 minutes, and standing more than 20 minutes. However, the Veteran stated that he walks the streets of his neighborhood on Tuesday nights (the night before recycling day) and hustles for cans and plastics so that he can get a little bit of money to buy food. In May 2012, the Veteran exhibited a normal gait and recorded negative straight leg raise testing. He requested to be prescribed an assistive device with a seat because, when walking long distances, he has to sit down for pain relief. In December 2013, the Veteran sought treatment for his history of left knee pain and lower back pain. He stated that left knee pain had been ongoing for six to seven months. He indicated that his pain was increased by walking more than 30 minutes, transitioning between sitting and standing, squatting, and bending. He reported no history of falls or trauma. He was described as "modified independent" in his activities of daily living and gait with the use of an assistive device. He reported living in a second-floor apartment and managing stairs daily. In 2014, the Veteran submitted multiple statements from VA treating provider Robert Malloy, ANP-BC, which stated that the Veteran's service-connected disabilities prevent him from obtaining and maintaining gainful employment. The statement includes no discussion of symptoms, or an explanation of how symptoms would impair the Veteran's ability to work. Medical opinions without a rationale are not probative and Mr. Malloy provided no support for his contention about the Veteran's employability. As such, his opinion is not probative. In February 2015, treatment notes indicate that the Veteran may have injured his knee when he was walking his dog and the dog took off running. Later that month, the Veteran reported that he was living with an acquaintance who gave him reduced rent in exchange for the Veteran taking care of her three dogs. Treatment notes in July 2015 continued to document the Veteran was independent in activities of daily living and the use of a single-point cane for ambulation. In January 2016, the Veteran reported that he gets exercise and pain relief for his lower back by walking, going door-to-door as a Jehovah's Witness. Increased difficulty walking was attributed to osteoarthritis and degeneration of the left knee. In March 2016, the Veteran reported experiencing chest pain while mopping, which indicates that the performance of such activity was not precluded by a service-connected disability. In June 2016, the Veteran reported that he was walking more often, which aggravated his nonservice-connected knee condition. He also reported the ability to use public transportation independently. During follow-up treatment the next month for knee and back pain, the Veteran reported that pain starts as soon as he starts moving around in the morning but that it "subsides as he gets into his daily work routine, which involves prolonged standing and walking." He reported continued independence in activities of daily living. In August 2016, the Veteran reported he spent seven days a week going door to door with a team of Jehovah's Witnesses to spread the word about his religion. He stated he attended classes and services at the church and would take the bus to get there. A September 2016 physical examination showed the Veteran had full strength and intact sensation with no gross musculoskeletal abnormalities. He reported continued use of an assistive device but indicated that his lower back pain was treated with "walking and being active," as well as medication. In late 2016 and early 2017, the Veteran reported continued community engagement and interest in prospective employment opportunities. He reported baking food for himself and stated that he drove a van for the Jehovah's Witness Congregation. He reported that he played pool with others at the rec area near his residence and expressed pride in his abilities. He also indicated that he was interested in earning his GED and becoming involved in dog/cat care. Although the relevant appeal period herein ends as of the award of TDIU effective February 4, 2017, the Board will discuss some evidence from the months thereafter, to the extent they may reflect on the Veteran's overall functioning prior to February 4, 2017. The Veteran underwent another VA examination of the spine in April 2017. His forward flexion of the lumbar spine was 65 degrees and full muscle strength in his lower extremities with no atrophy. An x-ray of the lumbar spine indicated the Veteran's degenerative changes to be stable. The Veteran was noted to have radiculopathy bilaterally with chronic pain and numbness, but no paresthesias and/or dysesthesias. He was noted to use a cane occasionally and a walker regularly for aid with ambulation, related to his back condition. The Veteran was noted to be limited in bending, sitting, standing, walking, jogging, or running, but was otherwise noted to be independent in his activities of daily living. In July 2017, the Veteran entered a 28-day inpatient substance abuse program. After discharge, the Veteran reported the ability to walk several miles a day in September 2017, as he had no car and had to walk to recovery meetings, which took more than a half-hour each way. In October 2017, the Veteran submitted an opinion from private treating source Sean Keefer, DC. Dr. Keefer indicated that the Veteran's service-connected disabilities of the lumbar spine and radiculopathy of the lower extremities prevent him from acquiring and maintaining steady employment. Dr. Keefer stated that the Veteran is unable to sit longer than 30 minutes at a time, which precludes him from sedentary desk work and that the Veteran reported that he is computer illiterate. He also indicated that that the Veteran is unable to walk without the aid of a walker, which precludes him from doing any sort of physical labor. He stated that the Veteran cannot walk more than one block without being in severe pain. The Board notes that determinations regarding employability are an issue reserve to the adjudicator, based on totality of the evidence of record and not on any one examination or opinion of record. However, to the extent Dr. Keefer's opinion could be construed to suggest entitlement to TDIU prior to February 4, 2017, the Board notes contradictions within Dr. Keefer's opinion and with the longitudinal record at large that limit its probative value and suggest the opinion does not accurately portray the Veteran's physical abilities during the relevant appeal period. For example, Dr. Keefer stated that the Veteran earns money by collecting recyclable materials in his community. This demonstrates that the Veteran is not precluded from any sort of physical labor due to an inability to walk without the use of an assistive device. Additionally, although Dr. Keefer reported that the Veteran cannot walk more than a block without being in severe pain, the Veteran reported the month prior that he could walk multiple miles per day in order to attend his recovery meeting. Dr. Keefer's conclusions are contradicted by the findings of record that shows that the Veteran was able to bake food, mop, play pool, drive a vehicle for the Jehovah's Witness Congregation, use public transportation, go grocery shopping, and care for multiple dogs, which included regular walks, a vocational area in which the Veteran has expressed interest in pursuing, and which would certainly require physical labor. Additionally, Dr. Keefer failed to address the impact of the Veteran's nonservice-connected disabilities, such as left knee arthritis and diabetes, which treatment records suggest to significantly contribute to his physical limitations. As such, Dr. Keefer's statement is of little probative value. Additionally, while the Veteran is competent to report his observed symptoms, the Veteran's credibility has been diminished as a result of recurrent inconsistencies in his reporting of events dating back to his early education. The Veteran submitted three, separate VA Form 21-8940s, the first of which was received in March 2012. Therein, the Veteran reported that he had completed one year of college. He stated that he became too disabled to work in June 1975, but also reported that he last worked as a forklift operator in 1999 at First Western Graphics. He reported that he left his last job due to his disability. The next VA Form 21-8940 was received in October 2013. It did not include a second page relating to the Veteran's education history; however, the Veteran reported that he had become too disabled too work in 1972 and he last worked as a laborer in a shipyard in 1982. He stated that he did not leave his last employment due to disability. A third VA Form 21-8940 was received in March 2014. Therein, the Veteran did not check a box indicating his highest education level, but wrote that he got to 12th grade but did not graduate. He stated that he became too disabled to work in 1973 and reported that he last worked as an ink recycler for First Western Graphics in 2000. He did not document whether he left his last job due to disability. These statements reveal significant contradictions relating to material facts that are relevant to TDIU consideration, including work history, education, and disability onset. Above the signature on the TDIU applications, a claimant certifies that "the statements in this application are true and complete to the best of my knowledge," and the form also notes severe penalties may result in the event the statements provided are false or fraudulent. Making false statements while certifying the truth of such statements damages the Veteran's overall credibility. For these reasons, objective medical findings in support of the Veteran's allegations are of particular importance, and statements and opinions based solely on the Veteran's self-reporting are of no probative value. Prior to February 2017, treatment records show generally stable functioning with independence in activities of daily living and without significant exacerbations of the Veteran's service-connected disabilities requiring urgent or inpatient treatment. Despite nonservice-connected disabilities contributing to the Veteran's overall functional limitations, as mentioned above, the weight of the evidence shows that the Veteran maintained independence and activity levels that do demonstrate that the Veteran was precluding from securing and following all forms of substantially gainful employment. The Veteran's daily routine was noted to include prolonged walking and standing, and he reported the ability get exercise by regularly walking throughout his community. Furthermore, the Veteran reported that he regularly collects recyclable materials in his neighborhood on foot, that he was able to drive a vehicle for his church, that he was able to care for multiple dogs, and that he was able to bake for himself, go grocery shopping, visit family, and otherwise manage his own daily affairs. Regarding the Veteran's education, training, skills, and work history, the Veteran reported that he dropped out of high school during 12th grade and did not receive his GED or diploma. During his March 2012 VA examination, the Veteran reported that he last worked in 2000 as a janitor for many years. He said he lost his job due to attending medical appointments and that his "company lost a contract." In 2016, he reported his job history to include working as a laborer in a shipyard off and on for 10 years, as well as employment as a custodian, forklift operator, ink recycler, and doing maintenance at a print shop. Despite describing himself as "computer illiterate," treatment records described the Veteran's ability to adapt as a skill, as he learned how to text in order to communicate with family members. During the appeal period, the Veteran expressed interest in earning his GED and exploring employment in dog/cat care. This shows that the Veteran believed that he was capable of working. Overall, the Veteran's diverse work history demonstrates a capacity for learning, training, and adaptability that would not be hindered by his service-connected disabilities. These attributes would facilitate the Veteran's transition to an unskilled or entry-level line of work that the Veteran is physically capable of performing. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges the Veteran experienced chronic pain in his back and pain and numbness in the left lower extremities relating to service-connected disabilities during the relevant period. The Veteran maintained independence in activities of daily living and required only routine treatment without significant exacerbations requiring urgent or inpatient care. He has maintained functional mobility with the use of his assistive device, as indicated by his ability to maintain a routine that involves prolonged standing and walking, as well as his reports of collecting recyclable materials, mopping, driving, baking, going door to door seven days a week to spread the word about his religion, and caring for animals/dog-walking. This is consistent with clinical findings of the Veteran having either close to full or full muscle strength in the lower extremities with no atrophy and flexion in the lumbar spine to between 65 to 80 degrees. As such, the Veteran's service-connected disabilities could have been appropriately accommodated by restricting the Veteran to occupations that could primarily be performed while sitting, that allowed the use of an assistive device for brief periods of ambulation, and which allowed the Veteran to intermittently change positions to adjust for comfort. Thus, the Veteran was physically capable of performing the requirements of substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran's service-connected disabilities have not been shown to cause the Veteran communicative deficits. Findings on mental status examination generally indicate the Veteran to be fully alert and oriented with intact cognitive functioning. The Veteran has maintained independence in activities of daily living and reported that he receives support through his church, where he has friends, and from his family. As the Veteran's service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment prior to February 4, 2017. For example, the Veteran was capable of performing jobs such as a telemarketer or customer service agent, where the employee makes or takes calls and primarily reads from a script, which does not require extensive training or experience, could be performed while seated, would not be impacted by the Veteran's use of an assistive device, and would allow the Veteran to change positions for comfort. A customer service agent interacts with customers to handle complaints, process orders, and answer questions. These positions can often be performed from home, primarily while seated, and allow the Veteran to switch positions for comfort. Similarly, the Veteran could have performed certain cashier or assembly line positions, or work as a library, theater, or museum attendant, positions that would not be physically demanding, could be performed primarily while seated, and would allow the Veteran to change positions intermittently. The Veteran could also be a parking lot attendant, which job would entail collecting payment, providing customers with instructions for parking and locating vehicles, and keeping the parking area clean and orderly. During this part of the appeal period, the Veteran had reported going door to door seven day a week to spread the word about his religion, which shows that he does not have to be seated all the time and can move around independently, which would include being able to move around a library, theater, museum, and parking lot. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran was unable to obtain or follow all forms of substantially gainful employment due to his service-connected disabilities during the relevant period. For all the reasons described above, the Board concludes that the preponderance of the evidence is against a finding that Veteran was precluded from all forms of substantially gainful employment prior to February 4, 2017 due solely to his service-connected disabilities. Therefore, entitlement to an extraschedular TDIU during the appeal period is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an extraschedular TDIU rating is not warranted prior to February 4, 2017. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.