Citation Nr: 21040389 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-08 156 DATE: July 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 12, 2014 is denied. FINDING OF FACT The record does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities prior to February 12, 2014. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 12, 2014, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1986 to February 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by a VA Regional Office (RO). This matter was previously before the Board, most recently in February 2021. At that time, the Board granted a TDIU for the period prior to January 4, 2020, effective February 12, 2014. The Board also remanded the issue of entitlement to a TDIU prior to February 12, 2014, to the Director of the Compensation Service (Director) for extraschedular consideration. The Board finds that there has been substantial compliance with the remand directives as an advisory opinion was provided by the Director in February 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). TDIU Generally, 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran generally contends that his service-connected disabilities have prevented him from working since 2009. The Board again notes that the Veteran has been granted a TDIU from February 12, 2014, onward. As such, the Board's focus will be on the evidence of record prior to this date encompassing the period on appeal beginning April 16, 2009, the date of receipt of the Veteran's initial claim by VA. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Prior to February 12, 2014, the Veteran was service connected for plantar fasciitis of the left foot at 20 percent, transitional vertebra with degenerative disease and herniated disc of the lumbar spine at 10 percent, radiculopathy of the right lower extremity sciatic nerve at 10 percent, radiculopathy of the left lower extremity sciatic nerve at 10 percent, osteoarthritis of the left hip at 20 percent, and osteoarthritis of the right hip at 20 percent. The Veteran's total combined disability rating was 60 percent from April 16, 2009 and 70 percent from June 24, 2009. At no time prior to February 12, 2014, was the Veteran in receipt of a single disability rated at 40 percent thus, he did not meet the schedular criteria for a TDIU per 38 C.F.R. § 4.16(a). Nevertheless, entitlement to a TDIU may still be granted, instead, on an extra-schedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates "that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. (emphasis added). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As noted earlier, the Board previously remanded the issue in February 2021 for referral to the Director of Compensation. At that time, the Veteran did not meet the schedular criteria to warrant consideration from the Board at first instance. Thus, a referral was necessary per 38 C.F.R. § 4.16(b). Additionally, no specific factual findings were made in either the February 2021 remand. It is noted that the Director determined in a February 2021 decision that a TDIU on an extraschedular basis (prior to February 12, 2014) was not warranted. The record has not otherwise changed since the Board's February 2021 remand except for additional argument submitted on behalf of the Veteran by his representative. The Board is not bound by the Executive Director's February 201 findings. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Executive Director's decision denying extra-schedular consideration). The Board is also not bound by the prior February 2021 remand directive to refer the matter for Director review. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the Board's referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). In Ray, the Court recognized that a referral decision under 38 C.F.R. § 4.16(b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. 31 Vet. App. 58. Here, while the evidence at the time of the February 2021 remand has not changed other than the Director's findings, a closer examination of the evidence warrants a denial of the benefit sought. Note, the Board referred the matter to determine whether extraschedular TDIU could be granted, but specifically declined making any determinations at that time regarding employability. In rendering a closer examination of the evidence, the Board finds the evidence does not support TDIU prior to February 12, 2014. See Ray, 31 Vet. App. 58 (holding that the Board's referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). Rather the evidence shows although the Veteran had physical limitations, his service-connected disabilities would not preclude light physical or light duty (sedentary) employment. The Veteran's educational history includes a high school education and some college classes. His military occupational specialty was an M1 Abrams Tank systems mechanic. Post service, the Veteran worked as a welder/millwright beginning in 2008 and in property maintenance until 2009. The Veteran's earnings history reflects the lack of any income from 2009 to December 2017, when he was hired to perform property maintenance at an apartment complex. The Veteran worked in that position until January 2020. The Veteran submitted an April 2020 private medical opinion addressing his employability. Based on a review of the record and interview of the Veteran. the private physician opined that the Veteran's ability to stand, walk, sit and/or stoop during an 8-hour workday would be limited to less than 2 hours, that he would require early departures and extra breaks and that he would not stay focused for at least 7 hours of an 8 hour workday. The private physician opined that the Veteran was unable to maintain substantial gainful employment since at least April 16, 2009, "when his limited mobility, severe pain, side effect of poor sleep due to pain and physical and mental limitations are factored in...". Several VA treatment records document that the Veteran has consistently reported experiencing foot and back pain. In an April 2009 statement, the Veteran reported that he had difficulty keeping jobs because his foot disability resulted in swelling that prevented him from standing. In January 2011, the Veteran sought treatment for low back pain, and it was noted as an ongoing complaint. Diagnostic X-ray testing from August 2014 revealed that the Veteran's left foot had no abnormalities but was still painful with no further changes noted since 2012. VA treatment records further reflect that the Veteran also has nonservice-connected disabilities of vertigo, psoriasis, hypertension, hypercholesterolemia, and gastroesophageal reflux disorder (GERD). See February 2016 CAPRI. Social Security Administration (SSA) records indicate that the Veteran had no taxable income from 2009 through December 2017. SSA records from December 2011 further indicate that the Veteran was found not disabled in his application for disability benefits. Although findings from SSA constitute probative evidence with respect to a TDIU claim, the Board notes they are not dispositive or binding on VA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In July 2009, the Veteran was afforded a VA foot and spine examination. At which time, the Veteran reported pain in his back and left foot which prevent him from obtaining a job. He reported that after discharge from the Army his left foot continued to bother him and has seen various physicians but no foot specialists. He further reported treating his left foot pain with over the counter shoe inserts that help somewhat but not completely and takes hydrocodone for back pain for about five years. The examiner observed that the Veteran walked with a limp and upon range of motion testing the Veteran's lumbar spine, he experienced mild to moderate pain. The Veteran was ultimately diagnosed with degenerative disc disease of the lumbar spine along with plantar fasciitis and heel spur of the left foot. The examiner went on to report that the Veteran was functionally limited to walking a maximum of 20 minutes when his back and foot bother him, can stand no more than 5 to 10 minutes, can drive 45 minutes, lifting capacity is limited to about 20 pounds and has interrupted sleep. In October 2009, the Veteran was afforded a general VA examination for benefits. The Veteran reported that he was not currently employed and had to quit his previous job for medical reasons. The examiner noted that the Veteran experienced moderate effects on daily activities due to his service-connected conditions of bilateral hip osteoarthritis, left foot plantar fasciitis, and degenerative disc disease of the lumbar spine. The examiner remarked that the Veteran was capable of managing his own finances and opined that none of his service-connected conditions "would preclude him being involved in gainful employment [however] he would be more successful with sedentary, less active physical responsibilities but would be able to function". The Veteran was afforded another foot and lumbar spine VA examination in April 2010. At which time, the Veteran again reported ongoing pain symptoms however, no additional functional impact was discussed by the examiner nor reported by the Veteran. In September 2013, the Veteran was afforded a VA hip and thigh examination. The examiner diagnosed the Veteran with mild degenerative joint disease in both hips. The Veteran reported the onset of the pain in his hips in 2000. Currently the pain was reported as being a constant 5 out of 10, worse at night at about 7 out of 10. Upon range of motion testing the examiner noted pain on movement with less movement than normal upon repetitive use testing. The examiner noted that no assistive devices are used. The functional impact noted by the examiner was that the Veteran is unable to squat or stoop and is unable to stand or walk for long periods of time. After thorough review of the claims file, the Board finds the evidence does not support TDIU. See Ray, 31 Vet. App. 58 (holding that the Board's referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). The Veteran was not employed between April 2009 and February 12, 2014 however, the evidence of record does not support a finding that he was unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities alone. The preponderance of the evidence supports that he was able to engage in light physical and sedentary employment, despite the functional limitations of his service-connected disabilities. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. See also Rouse v. McDonough, No. 19-5699 (2021), which confirmed the holding in Withers and declined to compel VA to adopt the definition of "sedentary work" or "sedentary employment" used by the Social Security Administration. Here, the Veteran's education, training, and work history demonstrate that, prior to February 12, 2014, he had the capacity to engage in light duty physical work and sedentary occupations such as stock clerk; performing clerical work; light maintenance work; and using a telephone. The Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. Although the Veteran has stated that he can no longer perform the job requirements of a mechanic, welder or building maintenance worker due to his back, hip and foot pain, limited ability to engage in lifting objects over 20 pounds, and to stand or walk for prolonged periods, these limitations would not preclude occupations which are primarily sedentary. He has never reported that the amount of time he can sit in one sitting is limited except for a limitation of driving for 45 minutes. Additionally, engaging in general office work would not prevent the Veteran from getting up from a sitting position and moving around frequently in the event the Veteran needed to do so. Furthermore, no VA examiner found the Veteran's physical limitations precluded his ability to work prior to February 12, 2014. The Board notes, that the April 2020 private medical opinion by Dr. S.E. stated that the Veteran was unable to maintain substantially gainful employment as a result of the combined effects of his service-connected conditions since at least April 16, 2009. However, the Board assigns this opinion little probative weight for purposes of determining whether prior to February 12, 2014 the Veteran was unable to obtain and maintain substantially gainful employment. Dr. S.E.'s opinion is unfortunately based on consideration of all of the Veteran's service-connected conditions, to include the service-connected condition of major depressive disorder. However, prior to February 12, 2014, the Veteran was not service connected for any mental health disorder or condition. Therefore, Dr. S.E.'s opinion is afforded less probative weight than the other medical evidence of record for it is based on inaccurate facts for the analysis required here. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. The Veteran however was not service connected for any disability which impacts his mental functioning prior to February 12, 2014. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran has not alleged, nor has he provided evidence that any employment he has had, prior to February 12, 2014, was marginal in nature. The Board does not doubt that the Veteran's service-connected disabilities cause impairing symptomatology. This impairment of function is recognized by the ratings assigned to each of his service-connected disabilities. The evidence does not support that these disabilities preclude substantially gainful employment, specifically to include sedentary or light physical employment as outlined above. In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful employment prior to February 12, 2014. For these reasons, the Board finds that an award for TDIU was not warranted prior to February 12, 2014 and, therefore, his claim must be denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.