Citation Nr: 21027804 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-30 332 DATE: May 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran's service-connected disabilities do not meet the schedular criteria for a TDIU rating, and the preponderance of the evidence of record is against a finding that her service-connected disabilities were of such nature and severity as to preclude her from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to January 1981. The Veteran attended a hearing before the undersigned Veterans Law Judge in August 2015. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in November 2015, February 2019, and December 2020. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU, to include on an extraschedular basis The Veteran contends that she is unable to secure or maintain gainful employment due to her service-connected disabilities. Total disability ratings 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 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, or if there are two or more 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. See 38 C.F.R. § 4.16(a). The Veteran is service-connected for the following disabilities, with the following ratings: lumbar myofascial syndrome at 20 percent from January 26, 2011, and 40 percent from October 23, 2019; bilateral lower extremity radiculopathy of the sciatic and femoral nerves all at 10 percent from August 19, 2019; and right leg small varicosity rated as noncompensable. The Veteran's combined disability rating is 60 percent as of October 23, 2019. Thus, a TDIU cannot be awarded under 38 C.F.R. § 4.16(a) as she does not meet the schedular criteria. Even when a Veteran does not meet the percentage standards for schedular TDIU, he or she may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Put differently, the Board may consider whether referral to the Director of Compensation Service (Director) for extraschedular consideration is warranted. In the December 2020 Board decision, the issue of entitlement to a TDIU, on an extraschedular basis, was referred to the Director. 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 or her education and occupational experience, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (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 (2019). The Court also held in Ray that the Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Ray v. Wilkie, at 62; see also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director's extraschedular decisions). The Veteran completed a VA form 21-8940 in August 2011. The Veteran indicated that she became too disabled to work full-time in 2003. The Veteran previously worked in a warehouse from 2002 to 2003. The Veteran stated that she completed high school but did not attend college. She completed another VA Form 21-8940 that was received on December 1, 2015 and claimed that both her bipolar and back disorders prevent her from securing or following any substantially gainful occupation. The Veteran had an examination for her back disability in June 2011. The Veteran reported that she has been on social security disability since about 2000 due to her multiple problems and has not worked since that time. The Veteran further reported that she previously did security work and construction work in various odd jobs. At the August 2015 Board hearing, the Veteran testified that she is too disabled to work. The Veteran indicated that she is not working due to her bipolar disorder. Additionally, the Veteran testified that she has limited mobility, which affects her ability to do daily activities, including sweeping, mopping, bending, and picking up objects. The Veteran further testified that she is receiving supplemental security income from the Social Security Administration (SSA). A December 2015 SSA letter confirmed that the Veteran has received supplemental security income since March 2002 due to disabilities including an affective/mood disorder and a sprain/strain. The Veteran had another examination for her back disability in March 2016. The examiner noted that the Veteran's back disability affects her ability to work. The Veteran reported increased back pain that impairs her ability to do daily activities and reported that the pain is exacerbated with prolonged sitting, standing, bending movements and long-distance walking. A September 2016 medical opinion notes that, with regards to her ability to work, the Veteran's lumbar myofascial syndrome is at least as likely as not to be one in which she could perform the sedentary aspects of work but not that of the physical aspects of employment. The examiner noted that the Veteran would be able to perform sedentary duties such as that of desk work. However, the examiner further noted that she would not be able to do the physical aspects of employment such as prolonged standing, bending, running, prolonged walking, or lifting/moving objects. VA Form 21-4192 indicates that the Veteran was employed from March 1, 2012 through November 5, 2012 and this employment ended because she moved out of state. During this period, the Veteran worked as a ticket taker at the front gate of a flea market and worked from 6 to 15 hours a week. The Veteran had an examination for her back disability in September 2019. The examiner indicated that the Veteran's back condition impacts her ability to work. Specifically, the examiner noted that the Veteran had functional loss with walking, standing, bending, and lifting. The Veteran had another examination for her back disability in October 2019. The examiner indicated that the Veteran's back condition impacts her ability to work. Specifically, the examiner noted that the Veteran has difficulty with lifting, carrying, pushing, and pulling heavy objects; difficulty squatting and kneeling; difficulty with prolonged sitting, standing, and ambulation; difficulty carrying objects up and down stairs, ladders, or inclines; and difficulty running or jumping. As addressed above, the Veteran did not meet the schedular rating for TDIU. As such, entitlement for a TDIU based on an extraschedular consideration was implicated, and in December 2020, the Board remanded the claim finding the Veteran provided some evidence sufficient to warrant referral to the Director, for extraschedular consideration of a TDIU. In a February 2021 determination, the Director considered the Veteran's record and concluded that the evidence of record does not demonstrate that the Veteran's service-connected disabilities, or a combination of the effects of those disabilities, prevent employment. The Director noted that the Veteran indicated that she was last employed in November 2012 as a ticket taker at the front gate of a flea market and is no longer employed there because she moved out of state. Additionally, the Director noted that the medical evidence shows the Veteran's back condition causes increased pain with prolonged use and limited range of motion and that she would have difficulty lifting/carrying/pushing/pulling heavy objects, squatting or kneeling, prolonged sitting/standing/ambulation, carrying objects up and down stairs/ladders/inclines, and difficulty running or jumping. The Director noted that the Veteran's back condition did not appear to preclude sedentary employment. The Director concluded that although there are limitations due to the Veteran's back condition, the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment. The Director stated that "if the Veteran was allowed to alternate between sitting and standing, which would be the case in many less physically demanding jobs, it is clear the Veteran would be expected to handle such positions". Ultimately, the evidence of record failed to support that the Veteran's service-connected disabilities cause an exceptional situation that prevents gainful employment. After a thorough review of the record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities do not render her unable to secure and maintain substantially gainful employment. As such, TDIU is not warranted, to include on an extraschedular basis. Although the Veteran has mobility issues due to her service-connected back and radiculopathy disabilities, the probative medical evidence of record indicates that she is still likely able to secure and maintain substantially gainful employment. The evidence of record indicates that although the Veteran does have mobility issues, they are not of the severity to preclude the Veteran from securing or maintaining gainful employment. Specifically, although the medical evidence of record notes that the Veteran has difficulty lifting, carrying, pushing, pulling heavy objects; squatting or kneeling; prolonged sitting, standing, ambulation; carrying objects up and down stairs, ladders, inclines; and difficulty running or jumping, the Veteran would likely be able to work in less physically demanding jobs that require only limited activity. Furthermore, the Board notes that the Veteran also listed her bipolar disorder on her December 2015 VA Form 21-8940, as a reason for her unemployability in addition to her back disability and testified in August 2015 that her unemployability was partially due to her bipolar disorder. Service connection is not in effect for a bipolar disorder. Therefore, any effect from that disability on her employability cannot be considered. Furthermore, the Board recognizes that the Veteran has been in receipt of SSA supplemental security income. SSA determinations, while probative, are not binding on the Board, as they involve the application of different legal standards. See Collier v. Derwinski, 1 Vet. App. 413 (1991). In this case, the SSA considered non-service-connected disabilities, specifically the Veteran's bipolar/mood disorder, which is a factor that VA cannot consider. VA is limited solely to service-connected disabilities when determining whether TDIU is warranted. Accordingly, the Board finds that an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) is not warranted in this case. While there is evidence that the Veteran has limited mobility due to her service-connected disabilities, the preponderance of the evidence is against the claim. The record has not demonstrated that the Veteran's service-connected disabilities are so severe that they preclude an ability to secure and follow gainful employment when considering her education, training, and occupational experience during the period. Therefore, the claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.