Citation Nr: 21027568 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-18 562 DATE: May 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record does not show that the Veteran's service-connected disabilities render her unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1974 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in December 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain medical opinions regarding the impact of Veteran's claimed disabilities on her employment. Appropriate medical opinions were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the December 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIULegal Criteria 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as "one disability" for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd v. McDonald, 27 Vet. App. 79 85-86 (2014). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). A veteran's age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In a recent precedential decision, the Court found that there was no mention or definition of "sedentary work" in the applicable statutes or regulations, and therefore, "the concept of 'sedentary work' is not necessarily part of a proper TDIU analysis." Withers v. Wilkie, 30 Vet. App. 139 (2018). The Court declined to define the term. If the Board relies on the term "sedentary work" in making a determination of entitlement to TDIU, the Board must explain the meaning derived from that concept. Where a veteran's ability to perform sedentary work is a basis for the Board's decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning to the extent that it is not apparent from the Board's overall discussion of the opinion as well as how the concept of sedentary work factors into the veteran's overall disability picture and vocational history, and the veteran's ability to secure or follow a substantially gainful occupation. The Board must consider the Veteran's education, training, and work history. 38 C.F.R. § 4.16. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. Analysis The Veteran contends that she is entitled to a TDIU as a result of her service-connected disabilities. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As an initial matter, the Board observes that the Veteran meets the schedular criteria for TDIU beginning August 6, 2019. The Veteran has a combined schedular rating of 70 percent disabling with osteoarthritis of the thoracolumbar spine at 40 percent disabling; left foot injury at 30 percent disabling; left foot scar at 10 percent disabling; and a bilateral lower extremity peripheral nerve condition each at 10 percent disabling. Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that her service-connected disabilities have not rendered her unable to secure or follow a substantially gainful occupation during the pendency of the claim. The Veteran was last employed working as a telemarketer in 2002. See September 2004 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. Additionally, evidence of the record indicates that the Veteran has completed 4 years of college education and has received additional education/training in first aid, law enforcement, flight operations, bookkeeping, payroll, blueprint reading, business, and ongoing computer training. See September 2004, March 2006, and April 2006 VA Form 21-8940. The Veteran is currently unemployed and indicated that her disabilities prevent her from securing employment. See April 2021 Appellant's Brief. During the Veteran's August 2019 VA Back examination, the examiner reported that the Veteran's back condition would prevent lifting and bending. The August 2019 Foot Conditions examiner noted the Veteran could not walk for more than two minutes, had poor balance, limped, and experienced chronic pain. In response to the Board's December 2020 Remand, the Veteran was provided with January 2021 VA medical opinions regarding the occupational impact of her service connected disabilities. After a review of the Veteran's medical records and lay statements, the examiner offered the following opinions. Regarding the Veteran's foot scar disability, the examiner noted it required no restrictions for job activities. Regarding the Veteran's service-connected back, peripheral nerves, and foot disabilities the examiner noted the Veteran may not tolerate activities requiring prolonged excessive walking, standing, bending, balancing, stair climbing, sitting, or heavy lifting. The examiner noted the Veteran may need to be in an environment that allows the ability to take frequent breaks and noted the Veteran would be capable of preforming sedentary employment which they defined as "[e]xerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met." Medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Here, the VA examiners provided opinions as to the impact of all the Veteran's service-connected conditions; additionally, the Board assigns great probative value to the fact that none of the VA examiners opined that the Veteran would be unable to perform work. Furthermore, while the examiners agreed that the Veteran's disabilities would impact her ability to work, namely the Veteran should avoid excessive walking, frequent bending, standing, stair climbing, balancing, and heavy lifting, they did not indicate that they would prohibit employment. The Board finds that the VA examiners did consider the full record, to include the Veteran's lay statements regarding her symptoms and complaints regarding the impact of his various disabilities on his ability to perform different actions. Moreover, the examiners offered clear conclusions consistent with the Veteran's reports and physical findings documented at each examination and explained that neither the Veteran nor the evidence identified any work prohibitive functional limitations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board notes that while the Veteran's employment in physical type jobs may be limited, the evidence shows that the Veteran is capable of non-physical employment. The Veteran has completed four years of college, has received training in non-physical work such as bookkeeping, payroll, blueprint reading, and is receiving ongoing computer training. The Board also notes that in her March 2006 VA Form 21-8940, the Veteran noted that she was waiting for the "right job to open up that fit into [her] military training." Given this, the Board finds the Veteran is capable of gainful employment in non-physical type work, such as an in office environment. The Board has carefully considered the Veteran's statements regarding the effects of her disabilities on her employability. Although she experiences pain and some physical difficulties, the evidence does not show that she is precluded from obtaining or maintaining substantially gainful employment consistent with her education and history. In this regard, the critical question is whether the Veteran's service-connected disabilities would cause her to be unable to work, notwithstanding her age or other nonservice-connected problems. For the reasons discussed above, the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the appeal is denied. 38 U.S.C. § 5107(b). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.