Citation Nr: 21042306 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-27 886 DATE: July 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Service-connected disability has not disabled the Veteran from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to January 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). This case has been subject to multiple Board actions. Most recently, in March 2021, the Board remanded this matter for an opinion from the VA Director, Compensation Service, for consideration of an extraschedular rating pursuant to 38 C.F.R. § 4.16. In May 2021, the Director provided an opinion. The case is again before the Board for appellate review. TDIU The Veteran is service connected for lumbosacral strain, degenerative arthritis of the spine, lumbar disc protrusion with foraminal stenosis, scar tissue from back surgery, and left lumbar radiculopathy and intervertebral disc syndrome. He claims that these problems disable him from securing and following substantially gainful employment. Law and regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and 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. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In such case, the Board refers the claim to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). A TDIU claim is "part and parcel" of an underlying increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; and whether the veteran has the 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, 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, 73 (2019). The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. In such cases, the reasonable doubt doctrine requires that all symptoms be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Evidence and analysis The issue on appeal arises out of a September 8, 2011 claim of entitlement to an increased rating for lower back disability. See Rice, supra; see also 38 C.F.R. § 3.156(b). The question before the Board is whether a TDIU has been warranted since September 8, 2010, one year prior to the date of claim. See 38 U.S.C. § 5100(b)(2); 38 C.F.R. § 3.400(o)(2). Since September 8, 2010, the Veteran has been service connected for the following disorders. A lower back disability has been rated 20 percent disabling with the exception of a temporary total rating between January 14 and May 1, 2016 and a 40 percent rating between May 1 and December 7, 2016. Left leg radiculopathy due to sciatic nerve irritation has been rated 20 percent disabling since March 30, 2012. Left leg radiculopathy due to femoral nerve irritation has been rated 20 percent disabling since March 30, 2012. And scar tissue on the back has been rated 0 percent disabling since December 7, 2016. The appeal period is divided into four sections between September 8, 2010 and January 14, 2016, during which time the threshold requirement for the assignment of a schedular TDIU were not met; between January 14 and May 1, 2016, during which time the Veteran was rated 100 percent disabled for convalescence following back surgery (see 38 C.F.R. § 4.30); between May 1 and December 7, 2016, during which time the threshold schedular requirement was met based on a combined 60 percent rating for multiple disorders with a common etiology; and since December 7, 2016, during which time the threshold schedular requirement was not met. A TDIU is not warranted between May and December 2016 because of the temporary total rating. Below, the Board will address whether the criteria for a schedular TDIU were met between May and December 2016, and whether the criteria for an extraschedular TDIU were met from September 2010 to January 2016, and from December 2016 until today. See 38 C.F.R. § 4.16. The relevant evidence in this matter consists of lay assertions from the Veteran, VA treatment records, private treatment records, and VA compensation examination reports dated in February 2012, May 2012, January 2013, March 2016, December 2016, and October 2020. This evidence shows that pain from service-connected disability has affected the Veteran's ability to perform in a labor-intensive occupation. Treatment records dated since 2010 from a private chiropractor indicate severe symptoms interfering with physical movement. Lay evidence dated throughout the appeal period demonstrates pain and limitation of motion caused not only by the lower back problem, but also from radicular symptoms into the left leg. The complaints are noted in each of the VA reports, beginning in February 2012, which note the Veteran's complaints that pain interfered with the ability to drive a truck. Truck driving has been his primary profession since leaving military service. The back pain gave rise to spinal surgery in June 2012, as noted in a letter from a treating VA physician. The treating physician stated that the Veteran would have multiple activity and work restrictions. These are including, but not limited to heavy lifting greater than 5 lbs bending twisting. He may be unable to return to work. Please excuse him from his absence or normal work duties if he is unable to participate. He may return to work in one week. The symptoms also gave rise to spinal surgery in January 2016, which necessitated convalescence until May 2016. The VA treatment records dated during the appeal period consistently note back and radicular pain. Most recently, in a June 2021 statement submitted into evidence, the Veteran described continuing pain that prevents him from working. An October 2020 VA report supported his statement insofar as it notes that pain interferes with the ability to perform heavy labor. The examiner expressly found the Veteran disabled from heavy, medium, and light physical work, and stated after range of motion testing, "[d]ue to limited range, Veteran cannot run, walk long distance or do prolonged standing. Cannot lift >15lb. Cannot bend easily to tie shoes." Further, the October 2020 VA report notes the Veteran as saying, I can no longer run. I can't walk long distance or do prolonged standing. I can't really work a 40-hour week so it is hard to [maintain] a job. I have to take breaks doing everything like cutting grass or shoveling snow. I can't bend easily to tie my shoes. I can't find a comfortable position to sleep; I sleep an hour here and there. In short, the record indicates that back and radicular problems during the appeal period have affected the Veteran's ability to work in a job requiring labor-intensive activity. The remaining question before the Board is whether a preponderance of the evidence demonstrates that, since September 2010, the Veteran has been able to secure and follow a substantially gainful sedentary occupation despite the disabling symptoms associated with the lower back and left leg disorders. In the May 2021 opinion addressing this question, the Director "determined the overall evidence fails to support the contention the service-connected disabilities or a combination of the effects of those disabilities prevents employment." For the following reasons, the Board agrees, insofar as the opinion applies to sedentary labor. Nothing in the evidence dated since September 2010 indicates that the Veteran has had service-connected inability to use his upper body, his hands or his arms. He has not had service-connected inability to hear, speak, or see. He has not had service-connected cognitive or psychiatric disability that would have precluded him from managing the mental and psychiatric demands of a job. See Ray, supra. And in his submissions to VA detailing restrictions from lower spine disability, he has demonstrated an ability to use a computer, type, communicate in writing, reason, and persuade. Indeed, the Board has relied on the persuasiveness of his submissions to find that disorders related to the spine have rendered him unable to perform physically demanding labor. Additional evidence shows an ability to function in an employment setting, moreover. Notwithstanding the Veteran's complaints, each of the VA reports dated since February 2012 indicates that service-connected disability did not prevent sedentary labor. The February 2012 VA report indicates "symptom amplification" and no impact of back disability on employability. The May 2012 VA report found back disability "mild to moderate" and found no objective evidence of an increase in disability. A January 2013 VA report cited the Veteran's "ability to work with some limitations and attend school" in finding him "capable of performing a sedentary position[.]" A March 2016 VA report, which detailed physical limitations while convalescing from January 2016 back surgery, found the Veteran capable of performing sedentary "work tasks." A February 2017 private medical report detailed impairment related to the lower spine and radicular symptoms, noted the Veteran as 29 percent disabled from these problems, and indicated the Veteran was capable of light work. Most recently, in the October 2020 report, the examiner stated that such disability did not disable the Veteran from sedentary employment involving, [e]xerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. 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 evidence also shows that the Veteran has prepared for, has the capacity for, and has engaged in, work involving light labor. The record shows that he has a high school diploma, studied in college, had worked as a laboratory technician in the early 2000s, studied to be a paralegal between 2011 and 2012, and has worked part time since 2019 as an electronics technician. So, his educational and employment history tends to indicate an ability to work with his mind and upper extremities, perhaps in a setting without the physical rigors associated with manual labor, such as in truck driving. In short, the absence of evidence of service-connected disability affecting the mind and the body above the chest, combined with demonstrated capacity and abilities, tends to show an ability to secure and follow a substantially gainful occupation. See Withers v. Wilkie, 30 Vet. App. 139 (2018). This is particularly so given the demonstrated ability to work for substantial portions of the appeal period. The Veteran has been employed for most of the time since September 2010, according to a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, submitted in April 2021. This form indicates that the Veteran worked 40 hours a week as a truck driver between 2010 and 2013, and that he continued working between 2013 and 2016 for the same company on a less-than-full-time basis due to a work-related injury in January 2013. Private medical evidence dated in early 2014 indicates that the Veteran continued working full time at that time. In his TDIU claim, the Veteran also indicated that he has worked 20 hours per week since 2019 as an electronics technician for a communications company. The record indicates that the Veteran did not work between 2016 and 2019 and has not worked full time since 2019. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to substantiate a TDIU claim. The ultimate question is whether the claimant, because of service-connected disability, is unable to perform the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the evidence shows that the Veteran has been able to perform the acts required by sedentary employment. This is despite any difficulty he has had in finding sedentary employment, and despite the problems caused by his lower spine disability in more rigorous settings. Considering the disability picture since September 2010, and previous work experience and educational background as a whole, the Veteran's lower spine and left leg problems have not precluded him from performing sedentary work in a job where his education and skills would be useful (e.g., paperwork, computer work, written communication). Consequently, service-connected disability has not disabled him from securing and following a substantially gainful occupation since September 2010. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply and the claim of entitlement to a TDIU on a schedular or extraschedular basis must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee, 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.