Citation Nr: 21028496 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-26 433 DATE: May 11, 2021 ORDER Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran is able to secure and follow a substantially gainful occupation in spite of her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1974 to August 1994. This matter comes to the Board on appeal from a January 2009 Regional Office (RO) rating decision, originally raised as part and parcel to a claim for an increased rating for sinusitis under Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The Veteran testified at a hearing before the undersigned in April 2013; a transcript of the hearing is of record. The matter was previously remanded by the Board in May 2015, July 2016, December 2017, and September 2018. An October 2019 Board decision denied entitlement to a TDIU. The Veteran appealed the denial to the United States Court of Appeals for Veteran's Claims (Court). In an August 2020 Joint Motion for Remand, the denial was vacated and sent back to the Board for corrective action. The basis for the vacatur was the lack of discussion by the Board of the Veteran's hearing testimony concerning the impact of her disabilities on her ability to work. The Board notes that additional medical evidence in the form of VA treatment records, not submitted by the Veteran, was associated with the record since the last adjudication by the Agency of Original Jurisdiction (AOJ). The Board notes that relevant evidence submitted by the Veteran is subject to automatic waiver of AOJ consideration, but not relevant medical evidence not submitted by the Veteran. Here, the Board notes that although the new evidence shows treatment for service-connected disabilities (the ratings for which are not before the Board at this time), it is not relevant to the Veteran's claim for a TDIU. The record contains reports of treatment for symptoms of sinusitis such as nose bleeds, difficulty breathing, and loss of sense of smell. The Board notes that the additional evidence is cumulative of similar findings in other records on file, as it shows symptoms and functional impairment already raised by the previous evidence of record, such that it does not provide further insight into the impact of the Veteran's service-connected disabilities on her ability to work. As such, the Board may proceed with appellate consideration. Entitlement to a TDIU is denied. 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 service-connected 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 more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 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 shall not be considered substantially gainful employment. 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, not a medical examiner. 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). When the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a Veteran may be entitled to a TDIU on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The issue of entitlement to a TDIU arose as part and parcel to the Veteran's appeal of the rating assigned for her sinusitis. As such, the relevant rating period for consideration for a TDIU is from up to one year prior to October 21, 2008, the date of the Veteran's claim for increase. The Board notes that the record does not contain evidence relevant to evaluating the Veteran's employability prior to October 2008. From October 21, 2008, the Veteran is service connected for sinusitis, rated at 30 percent disabling until April 10, 2012, and 50 percent therefrom; status post hysterectomy, rated at 30 percent; hoarseness or loss of voice as due to sinusitis, rated at 20 percent; status post left hemithyroidectomy, rated at 10 percent; bilateral breast cysts, rated as noncompensable; surgical scar of the neck, rated as noncompensable; and surgical scar of the abdomen, rated as noncompensable. The Veteran's combined disability rating is 70 percent until April 10, 2012, and 8- percent therefrom. The Veteran meets the schedular criteria for a TDIU from April 10, 2012. Regardless of whether the Veteran met the schedular criteria during a particular period, the crucial question before the Board is whether the Veteran's service-connected disabilities prevent her to securing or maintaining a substantially gainful occupation, taking into consideration her past work and education. The record shows that the Veteran completed 3 years of college in 2008. She has a prior work history of a communications specialist while in the military. She worked full-time for a social service agency doing work that involved childcare; and from 1998 to 2007, the Veteran worked for a newspaper company as a truck driver. She contends that she left her last position due to service-connected condition. The Veteran contends that her service-connected disabilities preclude her from working. She testified at her Board hearing in 2013 that she was unable to work because she could not make appointments due to being sick. She stated that she could not be in a closed building due to dust and pollen. She states that she could not make job interviews. She stated that she could not talk because her sinusitis affected her throat and teeth, but noted that it was a little better at the time of the hearing. She also stated that her sinusitis caused her to get dizzy and fall frequently. She stated that she fell at a job interview. She also contends that her sinusitis causes headaches and pain, and coughing can interrupt sleep. An April 2021 statement from the Veteran stated that her sinusitis and thyroidectomy made it difficult for her to carry heavy objects, and the work environment had a lot of dust and fibers that made it difficult to breathe. She reported constant watering of eyes, sinus pain, and having to blow her nose. She also contended that she experiences occasional discomfort due to her bilateral breast cysts. Turning to the relevant medical evidence of record, with regard to the Veteran's sinusitis, a January 2009 VA examiner indicated that she had hoarseness off and on. The examiner found that her sinusitis caused a severe impact on exercise, sports, recreation, travelling, and feeding. There was a moderate impact on chores, shopping, bathing, and dressing. An April 2012 VA sinus examiner noted that she had a reduction of voice on "bad sinus days" about 3 times a week. It was noted that she has a difficulty participating in social activities. However, that examiner indicated that her sinusitis did not impact her ability to work. A June 2014 VA sinus examiner also opined that her sinusitis did not impact her ability to work. That same examiner also opined that the Veteran's service-connected disabilities, to include sinusitis, status post hysterectomy, status post hemithyroidectomy, bilateral breast cysts, and hypothyroidism, would not render the Veteran incapable of securing and maintaining either physical and or sedentary employment. A February 2017 VA examination concluded that the Veteran's sinus, nose, throat, larynx or pharynx condition did not impact her ability to work. In the individual employability section of this examination, the examiner commented that the Veteran was able to drive, from Casa Grande to Phoenix VA, she was able to go up a flight of stairs, able to walk for 30 minutes several times a week, do light housework and take care of activities of daily living. The examiner also stated that the Veteran was able to use a computer, read a book, and do errands. According to the examiner, the Veteran's sinusitis did not limit her from doing sedentary type of employment. Moreover, the examiner noted that the Veteran was also able to do infrequent lifting of up to 10 pounds, walking up to 30 minutes, driving for greater than 60 miles, sitting for greater than 30 minutes. On that examination, her voice was noted as normal, without respiratory distress. She also was noted to have no lightheadedness or vertigo. The Veteran did not report dizziness or a loss of balance. A VA thyroid examination from February 2017 also concluded that the Veteran's condition did not impact her ability to work, noting her ability to drive some distance to the appointment, sit for 30 minutes, and walk for 30 minutes. In February 2017 VA examinations related to the Veteran's gynecological conditions, it was noted that the Veteran denied that her breast cysts had any impact on her ability to do work. It was also noted that her prior hysterectomy did not impact her ability to work, per the Veteran. A February 2018 addendum opinion was obtained to clarify whether the Veteran's service-connected disabilities precluded her from work. The examiner stated that the Veteran's thyroid condition and residual scar did not limit gainful employment of sedentary or a light physical nature. The examiner noted the Veteran's reported daily activities at the February 2017 examination including light housework, reading books, and computer work. The examiner also noted her ability to exercise by walking for 30 minutes several days a week. The examiner also acknowledged the Veteran's report in Social Security Administration records stating that work that takes 4 hours will take her 6 to 8 hours. The examiner did report that the Veteran would have a difficulty bending. The examiner also stated that the Veteran's chronic sinusitis does not preclude her from obtaining and sustaining a sedentary type or light type of physical employment where standing and walking was limited to less than a third of a workday. The examiner acknowledged the Veteran's reports of mucus built up and an inability to smell and constantly blowing her nose. The examiner also acknowledged the frequent reports of sinus infections that are non-incapacitating and the prolonged use of antibiotics for more than 4 to 6 weeks. The examiner further reasoned that even taking into consideration the Veteran's symptoms, the Veteran was able to drive to her appointment and able to go up a flight of stairs, fix meals, walk 30 to 60 minutes once or several times a week, and was able to do household chores, use a computer, read books, and do errands. Social Security Administration records also indicate that it was determined that the Veteran is not disabled. After thorough consideration of the evidence of record, the Board concludes that the most probative evidence of record establishes that the Veteran's service-connected disabilities do not interfere with her employability to the extent that they preclude her from securing or following substantially gainful employment consistent with her education levels and work history at any time during the period on appeal. The Board first notes that while the Veteran experiences fatigue that impacts on her strength and endurance, the impact was considered by the February 2017 and February 2018 examiners, who both noted that the symptom did not render her unemployable, and provided specific examples of activities she could perform that were consistent with her past employment history. The Board notes that the representative cited caselaw for the proposition that the referenced activities were not sufficient to establish employability, but the representative's arguments are unavailing; under the facts of this case, the Veteran's activities she can perform happen to be consistent with those of her past employment history. The Board finds that the limitations caused by the fatigue do not, alone or in combination with the other service-connected disorders, render the Veteran unable to obtain or maintain gainful employment. The Board acknowledges the Veteran's complaints that her sinusitis causes her to be unable to speak and to fall at job interviews. The Board also acknowledges the Veteran's contention that she cannot be in closed buildings, and that she had to leave her last job due to her disabilities. However, the Board affords less probative weight to those statements, as they are not supported by the medical evidence of record, are rather unusual with respect to the falling episodes and the inability to work indoors as to be unlikely (particularly as dust and pollen are not unique to buildings and can be present in trucks as well), and are less credible than the findings of the multiple VA examiners who opined that the Veteran's sinusitis did not preclude work. Further, on examination, her voice was normal in February 2017, and at no point on any VA examination did she mention dizziness or falling. While the Board notes that the Veteran may credibly experience those symptoms on occasion, the medical evidence of record does not support a finding that those symptoms manifest to a degree that precludes work. Moreover, even assuming she did leave her last job because of her service-connected disorders does not establish that she had to, or that she is unemployable. In fact, the evidence as a whole shows that the impact of her service-connected disorders are not as severe as she contends. This is conclusion the Board draws, and is entitled to draw as the fact finder, given that the Veteran herself does not report certain symptoms when she is perfectly capable of doing so on examination. The examiners concluded that the Veteran could do work of a sedentary or light physical nature. From the context of the examiner's statements, by sedentary they appear to be equating sedentary with light work, and the Board notes that the examples fit well within a common sense understanding of sedentary as involving highly restricted amounts of physical exertion. The examples of such work included no walking or standing more than a third of a workday. While the January 2009 VA examiner noted some significant limitations to daily activities, such a finding is given less probative weight, as it is in conflict with the totality of the remaining probative evidence of record. For example, it is unclear from the record how the Veteran's sinusitis causes a severe impact on her ability to eat. The Board finds that the Veteran would likely be able to do work consistent with her prior work experience, as she reports having done office work and driving a truck, and neither of those would be precluded by her service-connected disabilities. Again, the Board finds her assertions of being unable to work in a building to lack credibility, and nothing from her medical history supports such an unusual manifestation of sinusitis. The Veteran's educational background is consistent with obtaining her prior work positions, even in light of her current service-connected disorders. Further, to the degree the Veteran has credibly asserted her symptoms preclude her from working, greater probative weight is afforded to the findings of the multiple VA medical examinations that found each of her service-connected disabilities did not preclude substantially gainful employment. The Board emphasizes that while those opinions are not dispositive, as the ultimate determination of employability is a legal issue, the Board finds the medical opinions are consistent with the evidence as a whole, and the Board finds the medical opinions to be persuasive evidence. The Veteran clearly faces limitations due to her service-connected disabilities, these limitations were considered in the disability ratings she receives for those disabilities. The assignment of the schedular ratings is recognition of the functional limitations caused by her disabilities, and those ratings contemplate the severity and overall impact the symptoms have on her life. For the period during which the Veteran did not meet the schedular requirements for a TDIU, further referral action is not warranted. The Board notes that in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial referral decision addresses only whether there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to his or her service-connected disabilities. Here, for reasons similar to those discussed above, the record does not contain evidence sufficient to substantiate such reasonable possibility. In light of the above, Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran's service-connected disabilities have prevented her from securing or maintaining substantially gainful employment. Therefore, the preponderance of the evidence is against entitlement to a TDIU, to include on an extra-schedular basis. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.