Citation Nr: 21031628 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-40 487 DATE: May 24, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The weight of the evidence fails to establish that the Veteran was unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities for the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to June 1982. This matter was previously remanded by the Board of Veterans' Appeals (Board) in December 2018 for additional development. It now returns for further appellate review. Specifically, the Board remanded the claim to obtain federal records from March Air Reserve Base, the Veteran's last place of employment. See December 2018 Board Decision. Accordingly, the Regional Office (RO) sent requests for records to March Air Reserve Base in September 2019, January 2020, and June 2020. However, no additional records were received. In correspondence dated August 2020, the VA informed the Veteran of its inability to obtain the records from March Air Reserve Base despite numerous attempts. See i.e., October 2020 Final Attempt Letter. As such, the Board finds further attempts to obtain these records would be futile. The Board also finds substantial compliance with the December 2018 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). 1. Entitlement to a TDIU The Veteran contends that he is permanently unemployable due to his service-connected disabilities, and that TDIU is warranted. See August 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Legal Criteria TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a). To qualify for a TDIU on a schedular basis, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation because of her or her service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. Id. The United States Court of Appeals for the Federal Circuit stated that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the findings obtained on examination is not on whether the Veteran is unemployable due to his service-connected disabilities, but, rather the functional impairment caused solely by his service-connected disabilities in concert. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. Relevant Facts The Veteran submitted an intent to file a claim in October 2014. See October 2014 VA Form 21-4138. He subsequently filed an increased rating claim for his service-connected cervical and lumbar spine degenerative disc disease (DDD), pes planus, and tinea pedis disabilities in July 2015 and indicated his DDD prevented him from working. Because TDIU is considered part and parcel of an increased rating claim, the relevant temporal focus for TDIU is one year prior to the date of receipt of the intent to file a claim for increase, which in this case is October 28, 2013. 38 C.F.R. § 3.400. In October 2013, the Veteran's total combined disability rating was 60 percent. See i.e., July 2007 Rating Decision-Codesheet. The Veteran was service connected for the following disabilities: lumbar spine DDD rated as 40 percent disabling; cervical spine DDD rated as 20 percent disabling; hypertensive vascular disease rated as 10 percent disabling; neuropathy left lower extremity rated as 10 percent disabling; and pes planus, hemorrhoids, and tinea pedis, rated as noncompensable. Id. Turning to the medical evidence of record, the Veteran's lumbar spine disability was noted to be well controlled in May 2013. See May 2013 VA Internal Medicine Note in CAPRI received August 2016. The VA physician noted that the Veteran used 800 milligrams of Ibuprofen as needed and that he was followed by a private orthopedic physician. Id. The Veteran's private orthopedic surgeon Dr. A.T.F. provided a letter dated May 2015 regarding the Veteran's cervical and lumbar spine disabilities. See May 2015 Letter from Dr. A.T.F. The Veteran reported that he had difficulty with numbness and tingling in his upper extremities. The Veteran noted he could lift light to medium objects, and was able to perform activities of daily living including attending to personal hygiene. He also reported lower back pain with left leg numbness and tingling. He endorsed difficulty standing or walking more than 30 minutes, was unable to walk for prolonged periods, but was able to sit for two hours. On physical examination, the Veteran did not require assistive devices for ambulation and was able to get on and off the examination table without assistance. Id. Dr. A.T.F. assessed the Veteran with chronic lumbar spine sprain superimposed upon degenerative disc and joint disease; degenerative spondylolisthesis at the L4-5 level; lumbar spinal stenosis; cervical spine sprain/strain superimposed upon degenerative disc and joint disease; bilateral carpal tunnel syndrome; and left full-thickness rotator cuff tear. Id. Dr. A.T.F. noted that the Veteran's conditions have worsened since 2005 and "believe[s] it is appropriate for the patient to be resubmitting for potential change in his overall disability status given the current condition of his musculoskeletal system." Id. Finally, he noted that he informed the Veteran that he had limited treatment options short of surgical intervention. Id. In August 2015, the Veteran was provided VA examinations for his service-connected disabilities. The VA examiner opined that the Veteran's skin condition did not result in any functional impairment. See August 2015 VA Skin Diseases Disability Benefits Questionnaire (DBQ). Regarding the functional impact of the Veteran's foot disability, the examiner found that the Veteran was limited from prolonged standing, walking, and running. See August 2015 Foot Conditions DBQ. The Veteran reported that his lumbar spine disability caused limitations in heavy lifting and bending. See August 2015 VA Back (Thoracolumbar Spine) Conditions DBQ. The Veteran's sensory examination was normal and there was no diagnosed neurological disability noted. The Veteran did not use any assistive devices. The August 2015 VA examiner concluded that the Veteran's lumbar spine disability resulted in limited frequent bending, stooping, and heavy lifting. Id. During the August 2015 VA examination for his cervical spine disability, the Veteran described his functional impairment as pain in "back and hip continuing, down leg, including feet." Id. See August 2015 VA Neck (Cervical Spine) Conditions DBQ. The physical examination revealed normal sensory and neurological findings. The examiner found that the Veteran was limited from frequent crawling and climbing ladders due to his cervical spine disability. Id. Consequently, the Regional Office (RO) granted a 30 percent rating for the Veteran's cervical spine and foot disabilities but denied an increased rating for his lumbar spine disability in September 2015. See September 2015 Rating Decision. Thus, the Veteran's total combined disability rating as of October 28, 2014 increased to 80 percent. See September 2015 Rating Decision Codesheet. In October 2015, the Veteran disagreed with RO's decision with regard to his lumbar spine disability. See October 2015 Notice of Disagreement (NOD). The Veteran asserted that he was "almost total[ly] disabled from this condition which has constantly caused severe pain and discomfort over the last 10-15 years." Id. In a statement received in December 2015, the Veteran stated that he was considered legally blind in one eye and that "I have been told by my orthopedic that both hips are bad with left hip being bone on bone. All of these conditions is [sic] causing me to medical [sic] retire." See December 2015 Correspondence. The Veteran's VA treatment record from May 2016 noted that the Veteran was provided unemployability paperwork by a private orthopedic doctor due to left hip pain and that he retired in May 2016. See May 2016 Internal Medicine Note in CAPRI received August 2016. The Veteran also submitted an application for unemployability in August 2016. See August 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. He indicated that he last worked in February 2016 March ARB Commissary as a meat cutter. He noted that he was unable to work due to DDD. He reported he completed 2 years of college education. In the remarks section, the Veteran noted his other service-connected disabilities including cervical spine disease, pes planus with hammer toes, neuropathy, and hypertensive vascular disease. Id. Analysis From October 28, 2013 to October 27, 2014 During this period on appeal, the Veteran did not meet the schedular requirements for TDIU because his combined disability rating was less than 70 percent. See i.e., July 2007 Rating Decision-Codesheet. More importantly, the Veteran worked full time as a meat cutter at March Air Reserve Base until February 2016. See August 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In addressing TDIU, the central inquiry is whether a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993)' see also 38 C.F.R. § 4.18. As a threshold matter, employment that is not marginal, operates as a bar to a TDIU. Here, there is no evidence or assertion that the Veteran's employment was marginal due to income at a level below the poverty threshold or due to the work being in a protected environment such as a family business or sheltered workshop. In this regard, the Board notes that VA attempted to obtain records from the Veteran's previous employer but was unable to do so. See October 2020 Final Attempt Letter. Therefore, the Veteran is not entitled to an award of a TDIU for this period. October 28, 2014 to February 20, 2015 For the period from October 28, 2014, to February 20, 2015, the Veteran met the schedular requirements for TDIU because his combined disability rating was 70 percent or greater. See September 2015 Rating Decision Codesheet. The remaining question is whether the Veteran's service-connected disabilities render him unemployable during this period. In his August 2016 application, the Veteran indicated that he last worked full time in February 2016. See August 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Once again, in addressing TDIU, the central inquiry is whether a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." Hatlestad v. Brown, 5 Vet. App. at 529; see also 38 C.F.R. § 4.18. Here, because the Veteran was employed full-time, and has not asserted his employment was marginal including earning below the poverty threshold or work done in a protected environment, such as a family business or sheltered workshop, the Veteran is not entitled to a grant of TDIU for this period. From February 20, 2015 Although, the Veteran met the schedular requirements for TDIU during this period, the weight of the evidence fails to establish that the Veteran's service-connected disabilities alone preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience during this period. As noted above, the Court defined the phrase "unable to secure and follow a substantially gainful occupation" to have two components: an economic component (an occupation earning more than marginal income); and a noneconomic component that considers such factors as the Veteran's history, education, skill, training, physical ability, and mental ability. See Ray v. Wilkie, 31 Vet. App.at 73. Thus, the issue is whether the Veteran's service-connected disabilities alone are sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In order to address the Veteran's unemployability, the Board must discuss the noneconomic and economic factors as defined in Ray v. Wilkie. 31 Vet. App.at 73. Economic Factors Regarding the economic component, the Veteran reported that he stopped working full-time in February 2016. However, the Veteran also reported that he retired in May 2016 during a May 2016 VA consult. See May 2016 Internal Medicine Note in CAPRI received August 2016. In his TDIU application, the Veteran indicated that he earned $9,216 in the past six (6) months. See August 2016 Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. However, the Veteran's reported income in the prior 12 months dating back to February 2015, indicates that during this time the Veteran's earnings were below the federal poverty guidelines. The poverty guideline for one person ranged for 2015 was $11,770 under the United States Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, available at https://aspe.hhs.gov/prior-hhs-poverty-guidelines-and-federal-register-references (last accessed April 22, 2021). As such, the Veteran's earnings are considered marginal employment. Thus, the economic component has been met for this period. Non-economic factors As noted above, the noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. The Veteran's post-service work history includes working as a meat cutter until February 2016. See August 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. His education consists of a high school diploma and two years of college. Id. Here, the Veteran has not asserted and the medical evidence does not indicate that his lumbar spine DDD, cervical spine DDD, hypertensive vascular disease, neuropathy left lower extremity, pes planus, hemorrhoids, and tinea pedis disabilities alone precluded him from maintaining substantially gainful employment consistent with his educational background and occupational experience. Rather the evidence of record demonstrates that the Veteran retired from his job in 2016 due to non-service-connected disabilities. See December 2015 Correspondence (reporting he was unable to work due to legal blindness and bilateral hip pain); See May 2016 Internal Medicine Note in CAPRI received August 2016 (noting he retired due to hip pain). Regarding, the physical limitations caused by his service-connected disabilities, the August 2015 VA examiner found that the Veteran's foot disability, limited the Veteran from prolonged standing, walking, and running. See August 2015 Foot Conditions DBQ. The August 2015 VA examiner concluded that the Veteran's lumbar spine disability resulted in limited frequent bending, stooping, and heavy lifting. See August 2015 VA Back (Thoracolumbar Spine) Conditions DBQ. Id. The VA examiner found that the Veteran was limited from frequent crawling and climbing ladders due to his cervical spine disability. See August 2015 VA Neck (Cervical Spine) Conditions DBQ. However, none of the VA examination reports reflect that the Veteran's service-connected disabilities resulted in functional limitations that would render him unemployable. The Board notes that the Veteran reported neurological symptoms related to his lumbar and cervical spine disabilities. See May 2015 Letter from Dr. A.T.F. However, the VA examinations for his lumbar and cervical spine disabilities found no evidence of associated neurological symptoms. See August 2015 VA Back (Thoracolumbar Spine) Conditions DBQ; see also August 2015 VA Neck (Cervical Spine) Conditions DBQ. The Board considered the Veteran's lay statements and finds that he is competent and credible regarding the symptoms of his service-connected disabilities. However, although a layperson is competent to report observable symptoms he experiences, as a layperson he is not competent to provide a medical opinion concerning whether he is unable to work due to his service-connected disabilities. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Importantly, there is no evidence of record that the Veteran has the medical expertise sufficient to render such a determination. As such, the Veteran's lay statements regarding his employability are not probative. Instead, the Board accords significant probative weight to the VA examiners' opinions which are based on the review of the pertinent evidence and examination of the Veteran. The evidence of record does not demonstrate that he is precluded in engaging in substantially gainful employment solely due to his service-connected disabilities. Notably, the Veteran asserted during a May 2016 VA appointment, that he left full-time employment in part due to hip. He further stated in December 2015 that he was partially blind and had problems with his bilateral hips which caused him to medically retire. See December 2015 Correspondence. However, the Veteran is not service connected for an eye or bilateral hip disability, and TDIU cannot be granted for limitations caused by these non-service-connected disabilities. The Board considered the Veteran's assertion in his August 2016 substantive appeal, that he quit his job in February 2016 because he was "unable to do simple task such as tie my shoes, put on my socks; pick up objects off the floor ect. Due to the severe pain discomfort." See August 2016 VA Form 9. However, the Veteran did not state whether his service-connected disabilities alone resulted in the functional disabilities he described. Additionally, while the Veteran is competent to describe his physical limitations, but he is not competent to attribute his overall limitations to a particular disability because he does not have the medical expertise to make such conclusions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board reiterates that the crucial question is whether the Veteran's service-connected disabilities render him incapable of "performing the physical and mental acts required" to be employed. Ray v Wilkie, 31 Vet. App. at 73; see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (clarifying that, for TDIU purposes, "[t]he question is whether the veteran is capable of performing the physical and mental acts required by employment" (emphasis omitted)).). Here, there is no credible evidence demonstrating that the Veteran's lumbar, spine, hypertensive vascular disease, foot, or neurological disabilities, either collectively or individually, have met this threshold. The Board accepts that these disabilities have some occupational impact, which is reflected by his combined disability rating of 80 percent. The Board recognizes, for instance, that his foot and back disabilities impair his mobility and cause him pain in addition to side effects from medications, and that his cervical and lumbar spine disabilities prevents him from heavy lifting and prolonged walking and standing. Notwithstanding these findings, however, there is simply no credible evidence to suggest that these disabilities have rendered the Veteran incapable of "performing the physical and mental acts required" to be employed. See, Van Hoose, 4 Vet. App. 361. In sum, the evidence deemed most probative by the Board establishes that the Veteran's service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation at any time during the appeal period. Therefore, as the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply and the Veteran's claim for entitlement to TDIU must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.