Citation Nr: 21028699 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 07-14 615 DATE: May 11, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities during the appeal period. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to September 1975 and January 2003 to January 2004. He had additional reserve service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 decision from the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for further development by the Board in a December 2018 decision. There has been substantial compliance with the December 2018 remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2021 virtual Board hearing. The Veteran alleges that his combined service-connected disabilities prevent him from securing or following a substantially gainful occupation. At the February 2021 hearing, the Veteran testified that, primarily, chronic pain in his back and knees forced him to stop working and limit his mobility and productivity. He also has reported impaired sleep and fatigue resulting from sleep apnea, and depressive symptoms, which are exacerbated by his physical pain. The Veteran's representative contends that the Veteran is entitled to TDIU as of his last full-time employment in August 2016. 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). The Veteran is service-connected for obstructive sleep apnea (OSA), 50 percent disability rating from May 22, 2017; other specified trauma and stressor-related disorder, 30 percent disability rating from June 19, 2008; degenerative joint and disc disease of the lumbar spine, 40 percent disability rating from August 30, 2016, and 20 percent disability rating from September 1, 2019; degenerative arthritis of the bilateral knees, 10 percent disability ratings in each knee from January 10, 2004; postoperative scars, dorsum of the right foot, 10 percent disability rating from January 10, 2004; radiculopathy of the left lower extremity, 10 percent disability rating from May 26, 2006; and tinnitus, 10 percent disability rating from March 5, 2008. Based upon the above, the Veteran's combined disability rating during the relevant appeal period was 80 percent from August 30, 2016; 90 percent from May 22, 2017; and 80 percent from September 1, 2019. As such, the Veteran's service-connected disabilities have met the schedular criteria for a TDIU rating for the period on appeal. "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 U.S. Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie 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. 58, 73 (2019). 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 is unable to secure or follow substantially gainful employment due to the service-connected disabilities. The reasons follow. The evidence of record primarily reflects treatment relating to the Veteran's multiple musculoskeletal disabilities. Initially, the Board notes that the Veteran has not alleged that tinnitus limits his vocational abilities or has hindered his past work. He has demonstrated the ability to communicate effectively and has not received recurrent treatment relating to this disability. The Veteran reported that he stopped working as a parking lot attendant in August 2016 due to limitations associated with chronic pain in his knees and back. He underwent a VA examination for his knee and spine disabilities in the same month. He was noted to ambulate independently. The examiner documented that the functional impact of the Veteran's lumbar spine disability was that he was unable to engage in manual labor with repeated bending and lifting. The examiner found that the Veteran's knee disabilities made him unable to squat repeatedly. In both instances, the examiner found that the Veteran is capable of engaging in sedentary employment. The Veteran underwent another VA examination for these disabilities in April 2017 and continued to report chronic pain. The Veteran was be able to ambulate independently, but he reported occasional use of bilateral knee braces. The examiner documented that the functional impact of the Veteran's knee and back disabilities is that they affect the Veteran's standing, walking, bending, and lifting. The following month, the Veteran reported that he had been exercising. Thereafter, the record continued to show the Veteran to maintain independence in his activities of daily living, to ambulate independently with a steady gait, and to wear knee braces at times. The Veteran reported worsening pain in May 2018 and expressed frustration with his decreased activity levels, but he expressed interest in swimming as a form of exercise and reported that he had still been walking some. The Veteran reported a lot of back pain in February 2019, but stated that he was still regularly walking and riding a bike for exercise. The Veteran again reported walking to keep fit in July 2019 and described his back pain at a six out of ten pain level. He also stated that he enjoyed riding his bike and that he had gone fishing the previous week. The Veteran's disability rating for his spine was reduced from 40 percent to 20 percent in a May 2019 rating decision, effective in September 2019, and continued in an April 2020 rating decision, which is not indicative that his overall functioning was worsening during this period. In 2020, the record reflects relatively stable functioning with the Veteran's gait variably assessed as normal to mildly antalgic. The Veteran's OSA has been treated with the use of a CPAP, which the Veteran has indicated to be helpful over the course of the relevant period. Otherwise, he has required only routine follow-up treatment without significant exacerbations requiring urgent or inpatient care. He has reported fluctuating sleep difficulties, oftentimes intertwined with psychiatric symptoms. In May 2017, the Veteran reported that "he sleeps ok most of the time," despite occasional nightmares. In May 2018, he indicated that he was generally getting four to five hours of sleep per night with the use of his CPAP. Despite his sleep difficulties, the Veteran has routinely been found to be fully alert and oriented. In February 2019, the Veteran reported that he had not been sleeping well, but stated that his energy was fair most of the time. In July 2019, he reported averaging between five to seven hours of sleep with average energy and motivation. The Veteran has not alleged that psychiatric symptoms alone render him unemployable or that he stopped working due to any such symptoms. His job history, including work as a shuttle bus driver, parking lot attendant, stock clerk, security guard, and mail carrier would have required teamwork and routine interactions with the public. The Veteran has generally alleged struggling with depressive symptoms for years, exacerbated by pain, with some decreased mood, motivation, and concentration, and occasional nightmares. He has mentioned passive suicidal at times, but with no intent or plan and he has predominantly denied any suicidal ideation. The Veteran has received only routine and periodic mental health treatment and the evidence does not show any significant exacerbations in symptomology requiring urgent or inpatient treatment during the relevant period. In May 2017, the Veteran reported doing well and that he had good holidays with his family. He also reported adequate sleep, despite occasional flashbacks and nightmares, with good mood, energy, and motivation. He stated that he was exercising and eating healthy. Mental status examinations thereafter and throughout the relevant period show the Veteran to be fully alert and oriented with intact insight, judgment, and cognition, and no evidence of thought disorder. In July 2019, he reported a stable mood with less depression, and he denied agitation or irritability. He said that he forgets things at times. He was described as calm, cooperative, and engaging, and he denied suicidal ideation. His depression was described as mild and he exhibited a coherent thought process, fair insight and judgment, and no perceptual abnormalities. He reported that he likes to watch television, go fishing, and ride his bike. The Veteran exhibited increased depressive symptoms in 2020, but findings on mental status examination remained relatively stable and his attention and concentration were described as fair. The Veteran submitted multiple disability benefits questionnaires completed by private physician Alfred Hulse, DO, relating to his musculoskeletal disabilities, as well as the Veteran's OSA. In May 2017, Dr. Hulse stated that the Veteran's OSA impacts his ability to work by causing fatigue, headaches, and memory loss. In July 2017, Dr. Hulse stated that, due to his physical limitations, the Veteran is unable to stand for any length of time, is unable to bend or squat to lift, is unable to sit more than 30 minutes, and is unable to twist, turn, kneel, or bend due to pain. He stated that the Veteran can slowly walk between a half mile to a mile. In March 2018, he stated that he believed the Veteran to be unable to work since October 2015 due to his knee and back disabilities, indicating that the Veteran is unable to sit and stand for long periods of time, and unable to twist, kneel, stoop, bend, push, or pull due to pain. He stated that, therefore, the Veteran is unable to perform physical labor. Dr. Hulse's statements are of little probative value because they are contradictory on their face, portions are shown to be demonstrably false by the evidence of record, and they are generally contradicted by the Veteran's treatment history. Notably, the OSA symptoms attributed by Dr. Hulse are largely absent from the Veteran's treatment records. The Veteran has not complained of or received recurrent treatment for headaches during the relevant period. In July 2020, the Veteran denied experiencing recurrent or intractable headaches. Although he has reported occasional forgetfulness, his memory is generally indicated to be intact with normal cognitive functioning. Although the Veteran has reported recurrent sleep issues, the Veteran has reported improved sleep with use of a CPAP and chronic fatigue is not shown. Rather, the Veteran has reported averaging between four to seven hours of sleep per night with fair/average energy levels. The Veteran has also routinely been found to be alert and fully oriented. His attention and concentration have been assessed as fair. Dr. Hulse's July 2017 statement that the Veteran cannot stand for any length of time is contradicted by his own statement therein that the Veteran can walk up to a mile. It's also not supported by the Veteran's reporting that he goes fishing as a hobby and that he bikes and regularly walks for exercise. His 2018 opinion indicating that the Veteran was unable to work since October 2015 is proven false by the Veteran's own reporting of holding multiple jobs after October 2015, including his work as a parking lot attendant and part-time work as a stock clerk. Within the March 2017 21-8940, the Veteran reported working full time up until August 2016. The Court has held that opinions based on inaccurate factual premises are not entitled to probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the Veteran submitted a private vocational assessment completed by vocational consultant Karen Schneider, MRC, CRC, in June 2020, based on a review of the record and an interview with the Veteran. The consultant provided a summary of the Veteran's work and treatment history, including functional assessments provided by VA examiners and private sources, such as Dr. Hulse. The consultant stated that the Veteran reported that he can lift only 10 pounds; stand for 15 to 20 minutes; walk about a block; sit for 15 minutes at a time; and needs a cane for balance and to aid in ambulation. Based on Dr. Hulse's assessment that the Veteran has an inability to "stand for any length of time, inability to bend or squat, inability to sit longer than 30 minutes, inability to twist & turn or kneel," the consultant wrote that the Veteran would be unable to engage in any competitive job. Additionally, the consultant stated that, due to his combined impairments, the Veteran would likely be off-task in excess of 10 percent of the work day, accrue excessive absences, have difficulty maintaining concentration, persistence and pace, and would be unable to sustain production for two-hour intervals, so as to preclude competitive employment. Based on those conclusions, the consultant opined that the Veteran should be entitled to TDIU as of his last date of employment in 2016. The Board notes that determinations regarding employability are an issue reserved to the adjudicator based on a totality of the evidence and not any one particular opinion or assessment. However, the assessment of the private vocational examiner is of reduced probative value as it is inconsistent with the longitudinal evidence of record and overstates the severity of the Veteran's limitations. The consultant's findings relied heavily on the opinions of Dr. Hulse, which, as addressed above, are of little probative value. Dr. Hulse effectively indicated the Veteran to be incapable of any physical activity, which is undermined by the Veteran's own reported activity levels and his independence in activities of daily living. The consultant also wrote that the Veteran requires the use of a cane, which is not supported by the evidence. The Veteran was repeatedly noted to ambulate independently without the use of an assistive device. The Veteran regularly reported walking for exercise without mentioning the use of a cane and also reported activities inconsistent with the use of an assistive device, such as biking. As stated above, opinions based on inaccurate factual premises are not entitled to probative value. Reonal at 461. Additionally, despite the Veteran's reported symptomology, the consultant's conclusions about the Veteran's ability to sustain concentration, attendance, and production are not supported by the overall record. The Veteran has routinely been found to be alert and fully oriented. His attention and concentration have been assessed as fair and the Veteran generally reported fair/average energy levels. Even if the Veteran was unable to maintain his prior employment, which was performed at light to medium exertional levels, per the Dictionary of Occupational Titles (DOT), as reported by the consultant, the record does not show that the Veteran would be incapable of performing sedentary work, as suggested by the vocational consultant. Regarding the Veteran's education, training, skills, and work history, the Veteran reported that he completed two years of college. Education records show that he attended the University of Texas in Arlington as recently as 2005. The Veteran worked as a heavy equipment mechanic in the military. He reported that he most recently worked as a parking lot attendant in 2016. His past employment also includes work as a security guard, shuttle bus driver, stock clerk, and mail carrier. He has submitted employer statements indicating that he stopped working due to pain in his back and knees. Overall, the Veteran's diverse work history and his education demonstrate 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 a separate line of work that the Veteran is capable of performing. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences chronic pain in his back and lower extremities and has difficulty performing prolonged sitting, standing, walking, and cannot perform repetitive postural maneuvers, such as kneeling, crawling, or bending. However, treatment records predominantly reflect the Veteran's ability to ambulate independently without the use of an assistive device. He has demonstrated independence in his activities of daily living and has reported the ability to walk for exercise, ride a bike, and go fishing. The totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level with the ability to change positions to avoid prolonged sitting. The Department of Labor's DOT defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT's definition, 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. The Board finds no prejudice to the Veteran in considering the definition for purposes of deciding this claim, as the vocational specialist considered sedentary employment. The longitudinal record indicates that the Veteran is capable of sedentary work with the ability to periodically switch positions for comfort. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the Veteran experiences fluctuating depressive symptoms, often associated with his pain symptoms. However, these symptoms have generally not resulted in significant functional limitations. The Veteran has a history of working effectively with coworkers and the public, and he did not stop working due to any mental health issues. The Veteran has not experienced significant exacerbations to suggest decreased mental capabilities during the relevant period and has not required inpatient or urgent care, or more than routine follow-up treatment. The Veteran's service-connected disabilities have not been shown to cause the Veteran communication deficits ,and he has maintained independence in activities of daily living. The Veteran is described as calm, cooperative, and engaging, and mental status examinations generally reflect the Veteran to be fully alert and oriented with intact insight, judgment, and cognition, and adequate attention and concentration. Accordingly, the preponderance of the evidence is against a finding that the Veteran's psychiatric disorder hinders his ability to work. As the Veteran's service-connected disabilities do not cause the Veteran vocational 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 is capable of work that would result in income at the level of substantially gainful employment. For example, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities would preclude him from jobs that involve data entry. With data entry, the Veteran is primarily responsible for entering data into a system. These jobs can usually be done from home without significant training or experience. These occupations require very little exertional effort and would allow the Veteran to change positions as needed. Based on the Veteran's education history, relatively recent college experience, and intact cognitive functioning, the Veteran has, or is capable of quickly gaining, the basic computer skills needed for such a position. Alternatively, there are jobs that can be performed at home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, would require minimal exertional activity, and would allow the Veteran to change positions as needed. Similarly, a customer service agent interacts with customers to handle complaints, process orders, and answer questions. These positions can often be performed from home, while seated, and would allow the Veteran to adjust positions for comfort. The Veteran also appears capable of performing certain cashier positions, or work as a library, theater, or museum attendant, positions that would not exceed the demands of sedentary work and would allow the Veteran to change positions intermittently. 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 is precluded from all forms of substantially gainful employment due to his service-connected disabilities during the relevant period. For all these reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran is precluded from securing or following all forms of substantially gainful occupation due to his service-connected disabilities. As the probative evidence of record weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim of entitlement to a TDIU rating is denied. 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.