Citation Nr: 21027490 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 11-26 429 DATE: May 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The most probative evidence demonstrates that the Veteran's service-connected disabilities, when evaluated in association with his educational attainment and occupational experience, do not preclude the Veteran from securing or following all forms of substantially gainful employment during the appellate period. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REFERRED The issues of entitlement to a noninitial disability rating in excess of 20 percent for the Veteran's service-connected duodenal ulcer and entitlement to a noninitial compensable rating for the Veteran's service-connected hemorrhoids were referred to the Agency of Original Jurisdiction (AOJ) in June 2016 and September 2018 decisions of the Board of Veterans' Appeals (Board). To date, the AOJ has taken no action on these claims and they are again referred to the AOJ for adjudication. 38 C.F.R. § 20.904 (formerly 19.9). The Veteran is encouraged to follow up with the AOJ regarding the processing of these claims. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to September 1968. This matter is before the Board on appeal from a March 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter was denied in a June 2016 Board decision. The Veteran perfected an appeal before the United States Court of Appeals for Veterans Claims (Court) and in February 2018, the Court issued a memorandum decision vacating the June 2016 Board decision and remanding the matter for additional consideration. The Court found that the Board provided an inadequate statement of reasons or bases for relying on a July 2015 VA examination to deny the Veteran's claim seeking entitlement to a TDIU. The Court noted that the evidence indicated that the Veteran suffered multiple incapacitating episodes related to his ulcer that lasted 10 days or more per year and noted that it was unclear how the July 2015 VA examiner found that these prolonged flareups would have no impact on the Veteran's ability to perform sedentary employment. The matter returned to the Board in September 2018, at which time, it was remanded as inextricably intertwined with several pending claims. The matter returned to the Board in August 2020, where it was remanded for referral to the Director of Compensation Service for extraschedular consideration. In December 2020, the Director of Compensation Service issued a memorandum denying the Veteran's request for an extraschedular TDIU. The matter has now returned to the Board for final appellate consideration. While the Veteran requested a Board hearing for the increased rating claims that served as the predicate for raising this claim of entitlement to a TDIU, the Veteran failed to appear at the scheduled July 2012 Board hearing. He did not provide good cause for his absence or file a timely motion for a new hearing. The Veteran's hearing request is deemed as withdrawn. 38 C.F.R. § 20.603 (formerly 20.707). Additionally, the Veteran has never requested a hearing following any Board remands of the claim. See Quinn v. Wilkie, 31 Vet. App. 284 (2019); 38 U.S.C. § 7107(b). Accordingly, the Board may decide this matter without a hearing. The undersigned Veterans Law Judge has been assigned to adjudicate this matter pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). Neither the Veteran nor his representative has raised any issues with VA's duty to notify or VA's duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Court has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As the word "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is work in an office-like setting, that is primarily performed in the sitting posture, working on the computer, using analytical skills, and completing administrative tasks. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999); Withers v. Wilkie, 30 Vet. App. 139 (2018). The economic component of a TDIU claim is not in dispute, as the record sufficiently indicates that the Veteran has not earned an annual income in excess of the poverty threshold during the period under consideration, as he has been unemployed. Thus, the remainder of this analysis shall focus on the non-economic component of a TDIU claim. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for schedular TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran does not satisfy the schedular TDIU criteria, as his total combined disability rating is 20 percent during the appellate period (20 percent for postoperative duodenal ulcer and noncompensable for hemorrhoids, right inguinal hernia residuals, and right inguinal hernia scars). As noted above, the Board has previously referred the matter to VA's Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The Director found that the evidence did not indicate the Veteran's service-connected disabilities made it impossible for him secure or follow substantially gainful employment. Although the Director of Compensation Service found that entitlement to a TDIU on an extraschedular basis was not warranted, the Board still has the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability after referral to the Director of Compensation Service. See Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."); Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (per curiam) (finding that the Board erroneously relied upon the determination of the Director of Compensation Service as evidence, rather than merely "the de facto decision of the agency of original jurisdiction," subject to de novo review). A. Education and History The Veteran's DD Form 214 lists his military occupational specialty as a cook. The Veteran underwent a VA psychiatric examination in October 2010, at which time, he gave a detailed account of his post-service employment history. He reported that he retired from Sears in 2001, where he worked as a salesman and sales manager for 14 years. He stated that he was successful at his job and denied significant problems associated with this work. After leaving Sears, he worked for brief periods in a number of positions (waiter, custodian, substitute teacher, postal worker, train attendant, and bus/van driver). See also April 2005 VA Form 21-527. His last job was with city transit, where he drove buses. He stated that he quit in 2005, after working for a few months. He stated that he quit this job due to concerns about nonservice-connected high blood pressure, varicose veins, vertigo, and stress. He stated that varicose veins were causing increased pain associated with using the foot pedal on a regular basis. He stated that the job was stressful and caused high blood pressure, which caused vertigo. He stated that he sometimes became dizzy while working and hit a wall once when he became concerned about another car that was driving too closely. He noted increased agitation while working and stated that his problems were causing him to be more forgetful and to make more frequent mistakes. He stated that he was concerned about the impact this work would have on his health and quit. As far as an educational background, the Veteran attended college from 1970-75, studying history and religious studies, and he earned a bachelor's degree. After college, the Veteran went to seminary school from 1976-78 and again in 1980-81. He stated that he did very well in school and had no significant problems. The Veteran reported that he was active in church, and enjoyed going to ball games. He stated that he also likes to fix old electronics. He lived in an apartment by himself and was responsible for all self- and home-care needs. B. Further Review of the Record and Legal Analysis In March 2010, the Veteran stated that "sometimes" his ulcers bleed, his stomach hurts, his hemorrhoids itch, his hemorrhoids bleed, and he experiences pain. The Board finds these statements to be competent as they express the Veteran's personal experiences, and they are credible as they largely align with the medical evidence during the appellate period. The Veteran attended a VA rectal/stomach examination in July 2010. Regarding his hemorrhoids, the Veteran reported a worsening of his condition, with swelling pain, inflammation, and blood with wiping. He used hemorrhoidal suppositories 4 times per week and creams to manage his condition. His condition was manifested by frequent rectal bleeding, as well as anal itching, burning, and swelling. He experienced hemorrhoids 4 or more times per year, without thrombosis. He had a 10 percent weight gain compared to baseline. The impact of the condition on occupational activities was pain. His condition prevented the performance of sports; mildly impacted traveling; and had no impact on his ability to perform other daily activities, such as chores, shopping, exercising, recreation, feeding, bathing, dressing, toileting, or grooming. Regarding the Veteran's duodenal ulcer, the VA examiner charted that the Veteran's condition resulted in incapacitation 2 to 3 times per year, lasting a duration of 10 or more days. The VA examiner also stated that the Veteran experienced gnawing or burning pain several times per week, relieved by food and antacid. The Veteran also exhibited nausea several times per week, without a history of vomiting or diarrhea. The VA examiner stated that the impact of the Veteran's condition on employment would be increased absenteeism. The Veteran's condition prevented the performance of exercise; had a severe impact in the ability to recreate; had a moderate impact on the ability to complete chores; and had no impact on the ability to shop, play sports, travel, feed, bathe, dress, use the toilet, or groom. The Veteran attended a VA primary care visit in November 2014 where he reported a remote episode of abdominal pain with loose stools a few weeks prior. There was no gastrointestinal bleeding. Physical examination of the abdomen showed positive bowel sounds in all four quadrants, there was no costovertebral angle tenderness, no distention, no masses, and no edema. The physician stated that the Veteran's transient abdominal pain with loose stools was likely gastroenteritis, which had resolved. The Veteran underwent another VA examination in July 2015. He stated that he developed a sudden right groin pain in 1971 and immediately underwent a right inguinal hernial repair. He indicated he had not had any problem since the surgical repair. When asked about the functional impairment caused by the Veteran's hernia, the VA examiner stated that the Veteran could not lift, push, or pull more than 25 pounds. When asked about the functional limitations caused by all of the Veteran's service-connected disabilities, the VA examiner noted that the Veteran was service connected for duodenal ulcer and hemorrhoids. He stated that the impact of the Veteran's service-connected disabilities upon physical employment was that the Veteran could not lift, push, or pull more than 25 pounds due to residual scarring on the abdominal wall from his prior surgery to repair a perforated duodenal ulcer. The VA examiner further stated that there was no impact on the Veteran's ability to engage in sedentary employment due to his service-connected disabilities. Since the Veteran had frequent heartburn and required regular use of Maalox, any type of work would also have to accommodate his need to take the medication to alleviate his symptoms while working. The Veteran's VA treatment records during the appellate period show only occasional complaints of ulcer/abdominal pain or discomfort and hemorrhoid pain/bleeding/itching. Physical examination typically showed the abdomen as soft, non-tender, with normal bowel sounds and without masses. Rectal examinations did not show severe findings. His conditions were medically managed. His ulcer was treated with Maalox, milk of magnesia, and omeprazole, and his hemorrhoids were treated with topical medication, suppositories, and a fiber diet. In September 2020, the Veteran submitted private emergency room records from April 2017 and August 2017, documenting treatment for abdominal complaints and hemorrhoidal bleeding. The April 2017 records note that he was experiencing lower abdominal pain for several weeks and the pain was exacerbated when getting up from a sitting or lying position. The Veteran reported that he had been sleeping on an air mattress and posited that his pain may be due to straining his abdominal muscles when trying to get up from the air mattress. He had no nausea, vomiting, or diarrhea. Physical examination of the abdomen revealed normal bowel sounds; it was non-distended; it was soft, with minimal bilateral lower quadrant abdominal tenderness, no rebound, no guarding, and no palpable organomegaly or masses. A computed tomography of the pelvis and abdomen showed no acute pathology. The August 2017 treatment records noted a three-week history of hemorrhoid bleeding when the Veteran used the bathroom and when wiping. He also reported low abdominal pain, but denied constipation. He noted that he was not eating as healthy and that he used hydrocortisone cream to relieve his rectal pain. He stated his lower abdominal pain was most pronounced when he was sitting for long periods of time and then attempted to stand up. Physical examination of the abdomen revealed normal bowel sounds; it was non-distended; it was soft and non-tender, with no rebound, no guarding, and no palpable organomegaly or masses. Physical examination of the rectum was normal, with no masses, pain, abscesses, perirectal fistulas, or skin changes, and the Veteran's stool was guaiac negative. Lab results were reassuring and did not identify any pressing medical concerns. He was encouraged to eat a diet of fresh fruits and vegetables and to drink plenty of water. The Board has also reviewed the Veteran's records from the United States Social Security Administration (SSA). A final June 2010 decision from the SSA indicated that the Veteran was capable of performing past relevant work as a retail salesman and/or substitute teacher and retained the residual functional capacity to perform a full range of light work under SSA defining guidelines. It must be noted that the SSA decision considered the impact of the Veteran service-connected duodenal ulcer and hemorrhoids, in addition to his nonservice-connected bilateral varicose veins, cervical strain with radicular pain, atypical chest pain, and dizziness/vertigo. A physical residual functional capacity examination conducted in April 2008, a few years prior to the appellate period, demonstrated that the Veteran could occasionally lift/carry 50 pounds and frequently lift 25 pounds; he could stand about 6 hours in an 8-hour work day; he could sit about 6 hours in an 8-hour work day; he could push/pull (including the operation of hand and/or foot controls) for an unlimited duration; he had no postural limitations; no manipulative limitations; no visual limitations; no communicative limitations; and no environmental limitations. A disability evaluation conducted in March 2008 showed the Veteran was able to cook, perform laundry, go to the bathroom, clean, mop, sweep, shop, drive, watch television, take walks, stand, sit, lie down, squat, dress himself, walk without assistance, turn doorknobs, grasp objects, write, read, and walk a mile. Physical examination was normal, and hemorrhoids were noted by history only. Following a full and thorough review of the evidence of record, lay and medical, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. The evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities during the appellate period. The Veteran's treating primary care and gastroenterology physicians have never issued permanent work or physical restrictions to the Veteran due solely to his service-connected disabilities. Moreover, the bulk of the VA and private treatment records indicate that the Veteran's service-connected duodenal ulcer, hemorrhoids, and right inguinal hernia (and related residuals) have been medically managed by conservative treatment and do not result in any significant physical impairments. The Veteran has a varied work and educational history, which demonstrates that he is adaptable to many forms of gainful occupation. He also has the intellect and aptitude to engage in sedentary, analytical workas evidenced by his history of successfully completing several years of higher postsecondary educationand his ability to teach othersas evidence by his brief employment as a substitute teacher. The July 2015 VA examiner stated that the Veteran's physical abilities would be limited to lifting, pushing, or pulling no more than 25 pounds due to impairments caused by his service-connected disabilities and that the Veteran would require occasional breaks to take heartburn medication. These physical parameters would not limit the Veteran from performing his past long-term employment as a salesman or his other occupational experiences, such as bus/van driving. At a minimum, sedentary employment in an office-like setting could be achieved based on these physical restrictions. The Veteran has no mental impairments caused by his service-connected disabilities, and the evidence demonstrates he is well educated and can engage in critical thinking, follow complex instructions, and quickly adapt to his environment. Moreover, the Veteran's experience as a salesman and his work in ministry demonstrates that he has the personality and demeanor to engage with and work with others. Based on the reasoning identified above, and in consideration of the Veteran's past educational attainment and occupational experience, the Board finds that the most probative evidence weighs against a finding that the Veteran is precluded from securing or following all forms of substantially gainful occupation. The Veteran's service-connected disabilities have not resulted in impairment sufficient to prevent the Veteran from performing his past occupations, or jobs of like duties, and at minimum, the Veteran is capable of engaging in sedentary office-like employment, as he has maintained the ability to perform analytical and concentrated work in accord with his history of successfully completing higher education, while in the sitting posture, with necessary breaks. In the February 2018 memorandum decision, the Court cited a July 2010 VA examination and erroneously stated, "it was noted that the [Veteran] had retired from his usual occupation as [a] salesman and manager for Sears in 2001, and that his hemorrhoidal and duodenal ulcer pain significantly affected his performance on this job, including absenteeism." This is not an accurate assessment. Indeed, the October 2010 VA psychiatric examiner clearly stated, "[the Veteran] was successful at his job [with Sears] and denied significant problems associated with his work." (emphasis added). The July 2010 VA examiner who assessed the Veteran's duodenal ulcers and hemorrhoids noted that the Veteran was previously employed as a salesman and manager with Sears and that he retired in 2001 because he was "[e]ligible by age or duration of work." (emphasis added). The VA examiner then explained that based on current findings, the Veteran's conditions would result in pain and increased absenteeism. The July 2010 VA examiner did not state that the Veteran's hemorrhoidal and duodenal ulcer pain significantly affected his job performance and/or contributed to the end of his employment with Sears, as suggested by the Court. The Court conflated the VA examiner's opinion on current occupational effects with the Veteran's reasons for ending his employment as a salesman/manager nearly 10 years prior. Despite this clear inaccuracy by the Court in reviewing the record, the Court opined that the Board erred in assessing the physical limitations issued by the July 2015 VA examiner because the VA examiner did not address the statements from the July 2010 VA examiner stating that the Veteran's duodenal ulcer condition resulted in incapacitating episodes 2 to 3 times per year that each lasted 10 or more days. The Board does not find the July 2010 VA examiner's assessment regarding incapacitating episodes to be probative in this determination. Despite hundreds of pages of medical treatment records spanning the entirety of the appellate period, there is no other medical evidence that substantiates the VA examiner's assessment that the Veteran's duodenal ulcer condition has resulted in incapacitating episodes 2 or 3 times per year lasting 10 or more days. Even when the Veteran reported a history of abdominal complaints to his treatment providers, such as pain or discomfort lasting up to 3 weeks, it was never reported as being fully incapacitating, which the Board defines as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a healthcare provider. C.f. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1); 38 C.F.R. § 4.79, General Rating Formula for Diseases of the Eye, Note (1). During such episodes, the Veteran remained fully capable of engaging in activities of daily living. The Board does not find the July 2010 VA examiner's opinion regarding incapacitating episodes to be credible when weighed against the remainder of the record. See generally Caluza v. Brown, 7 Vet. App. 498 (1995) (In weighing credibility, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran). The Board also disagrees with the Court's assertion that "increased absenteeism" is a minimization of the July 2010 VA examiner's opinion, when in fact, the July 2010 VA examiner who assessed the Veteran's duodenal ulcer explicitly stated that it would result in "increased absenteeism." As the Board already articulated in the June 2016 decision, "increased absenteeism is not tantamount to the Veteran being precluded from substantially gainful employment. The Board emphasizes that the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Increased absenteeism is a vague finding, as it does not indicate a definite frequency or duration. Thus, this finding, in and of itself, does not establish that the Veteran is unable to secure and follow substantially gainful employment commensurate with his educational and occupation history due solely to service-connected disabilities. To the extent that the Court determined that "increased absenteeism" does not fully describe the Veteran's impairment because "[m]ultiple incapacitating episodes that would require the [Veteran] to miss weeks of work at a time would appear to greatly impact the [Veteran's] ability to maintain substantially gainful employment," the Board has already determined the July 2010 VA examiner's statement regarding incapacitating episodes is not probative in this determination. In the August 2020 decision, the Board remanded this matter for referral for extraschedular consideration because the record, including the Veteran's reports of being disabled by his service-connected disabilities, contained sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities." Ray, 31 Vet. App. at 66. However, this factual finding by the Board is based on a much lower evidentiary threshold than for a grant of an extraschedular TDIU. Id. As articulated above, despite this reasonable possibility raised by the Veteran's lay statements, the weight of the evidence is against the award of an extraschedular TDIU, as the Veteran has retained the physical and mental capacity to engage in sedentary employment, at minimum, based on his past educational and vocational endeavors, despite his service-connected disabilities. [Continued on Next Page] In sum, the preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities, alone, render him unable to secure and follow substantially gainful employment, nor is the evidence in a state of equipoise on that question. As such, the Veteran's claim seeking entitlement to a TDIU is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.