Citation Nr: 22014335 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 15-02 457 DATE: March 12, 2022 ORDER Referral for consideration of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. There is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of service-connected disabilities. 2. The Veteran's service-connected disabilities alone do not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1983 until his honorable discharge in May 2003. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This case has a long procedural history, initially coming to the Board on appeal from October 2012 and March 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In the June 2018 decision, the Board remanded entitlement to service connection for bilateral pes planus, chronic right calf strain, hypertension, erectile dysfunction, chronic renal insufficiency, and special monthly compensation for loss of use of a creative organ; the Board also remanded entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine. In a June 2019 rating decision, the Veteran was awarded service connection for bilateral pes planus effective March 5, 2012; chronic right calf strain effective March 5, 2012; hypertension effective March 5, 2012; and coronary artery disease status post PCI (angioplasty) effective May 13, 2019. In an August 2019 rating decision, the Veteran's service-connected degenerative disc disease of the lumbar spine was amended to include sacroiliitis, and entitlement to service connection for left and right lower radiculopathy with nerve dysfunction were denied. In an August 2020 rating decision, the Veteran was awarded entitlement to service connection for chronic renal insufficiency with microalbuminuria and proteinuria effective March 5, 2012; erectile dysfunction effective March 5, 2012; and entitlement to special monthly compensation based on loss of use of a creative organ effective March 5, 2012. In the February 2021 decision, the Board denied entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease with sacroiliitis; granted entitlement to a separate 10 percent rating for left and right lower extremity radiculopathy; and remanded entitlement to a TDIU. In an April 2021 rating decision, the RO effectuated the February 2021 Board decision, and assigned a 10 percent evaluation for left and right lower extremity radiculopathy effective March 5, 2012. Thus, the only issue left on appeal is entitlement to a TDIU, which has now been returned for appellate consideration. The Board is satisfied that there has been substantial compliance with the February 2021 remand directives. Thus, the Board can adjudicate the claim. The RO issued an April 2021 rating decision subsequent to the April 2021 Supplemental Statement of the Case. The rating decision considered the same evidence that was considered in the SSOC with respect to the TDIU claim. Entitlement to a TDIU. In the prior February 2021 Board remand, it was determined that the issue of entitlement to a TDIU had been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that TDIU is not a separate issue that must be raised with specificity; rather it is a component of an increased rating claim). A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the Veteran is precluded from obtaining or maintaining any gainful employment by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such 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). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following disabilities will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. The Veteran is service connected for bilateral pes planus as 30 percent disabling; chronic renal insufficiency with constant proteinuria with hypertension as 30 percent disabling; degenerative disc disease lumbar spine as 10 percent disabling; left lower extremity radiculopathy associated with degenerative disc disease lumbar spine as 10 percent disabling; right lower extremity radiculopathy associated with degenerative disc disease lumbar spine as 10 percent disabling; circadian rhythm sleep disorder as 10 percent disabling; chronic right calf strain as 10 percent disabling; coronary artery disease status post PCI (angioplasty) as 10 percent disabling; small lipoma left hypogastric area as 0 (zero) percent disabling; and erectile dysfunction as 0 (zero) percent disabling. He has a combined disability rating of 0 percent from June 1, 2003 to March 5, 2012; 70 percent from March 5, 2012 to May 13, 2019; and 80 percent from May 13, 2019. Thus, the Veteran has not met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU benefits may be granted on an extraschedular basis in exceptional cases when a 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 Board cannot award a TDIU in the first instance, because 38 C.F.R. § 4.16(b) requires that the issue first be submitted to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the phrase "substantially gainful occupation" as having two components: one economic and one noneconomic. In assessing a veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider a veteran's history, education, skill, and training as well as physical and mental abilities required by the occupation at issue. Id. 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 workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. If the Board determines that a referral is not appropriate, a different analysis must be made. The Court in Snider v. McDonough, No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050 (November 19, 2021), held that if the Board denies a referral, it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. In this case, the Board finds no basis to refer the matter for extraschedular consideration. In March 2012, the Veteran submitted a VA Form 21-526 Veterans Application for Compensation or Pension. The Veteran stated his medical disabilities affected his personal life (with exercise, sports, recreation) and professional life (with inability to do prolonged weight bearing activities without breaks); the Veteran listed service-connected and nonservice-connected disabilities. See March 2012 Correspondence. As requested, in the prior February 2021 Board remand, the Agency of Original Jurisdiction (AOJ) was directed to provide the Veteran with the required Section 5103 notice regarding a claim for TDIU. Similarly, VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits), were to be sent to the Veteran to allow VA to ascertain his employment history and education. However, the Veteran has not returned the requested VA Form 21-8940 or furnished additional work history information to provide clarification on this issue. A duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of his claim. 38 U.S.C. § 5107(a); Wood v. Derwinski, 1 Vet. App. 406 (1991). Therefore, the Board will decide this matter based on the evidence of record as it currently stands. See Wood v. Derwinski, 1 Vet. App. at 193 (1991). The record reflects the Veteran was employed as a Respiratory Therapist until September 2018. He has a Bachelor of Science degree. Although the Veteran did not submit the VA Form 21- 8940, the record contains medical evidence that addresses functional impact. VA treatment records and examination reports show that while the Veteran has some impairment from his bilateral pes planus, degenerative disc disease of the lumbar spine, bilateral lower extremity radiculopathy, and chronic right calf strain, these impairments are not of such severity that they prevent all gainful employment. The Board also notes that while the Veteran is service connected for circadian rhythm sleep disorder, chronic renal insufficiency, hypertension, coronary artery disease status post PCI, lipoma, and erectile dysfunction, there is no indication that these disabilities have caused any impairment in his ability to work. The Veteran was afforded multiple VA examinations in October 2012. During the Mental Disorders examination, the VA examiner noted the Veteran is presently employed as a respiratory therapist. The examiner diagnosed circadian rhythm sleep disorder, and ultimately opined the Veteran's symptoms of chronic sleep impairment are not severe enough to interfere with occupational and social functioning. During the Hypertension examination, the examiner determine that the Veteran's hypertension does not impact his ability to work. During the Back Conditions, Muscle Injuries, and Flatfoot (Pes Planus) examinations, the VA examiner remarked the Veteran's service-connected disabilities impact his employment as a respiratory therapist. The Veteran reported prolonged sitting causes lower back pain, he experiences occasional pain to his right calf during walking and running, and prolonged standing or walking increases the pain in his bilateral feet. See October 2012 examination reports. In a September 2015 Jacksonville VA psychiatry consultation, the Veteran stated he was feeling anxious due to getting older and the thought of retirement. The examiner noted that the Veteran was "starting to feel extremely anxious about the possibility of losing his job [as a respiratory therapist] prior to retirement." In accordance with the Board's June 2018 remand, the Veteran was afforded multiple VA examinations in May 2019. During the Back Conditions examination, the Veteran stated he was not presently employed, noting he last worked as a respiratory therapist in September 2018. During the Hypertension and Heart Conditions examinations, the examiner remarked the Veteran's service-connected hypertension and coronary artery disease status post PCI do not impact his ability to work. During the Back Conditions, Muscle Injuries, and Foot Conditions VA examinations, the VA examiner remarked the Veteran's service-connected disabilities impact his ability to work. The Veteran reported the pain in his lower back and bilateral feet, and right calf strain, limits his ability to walk more than 30 minutes or stand in one position for more than 10 minutes. In August 2020, the Veteran was afforded a Kidney Conditions, and Male Reproductive System Conditions examination. The examiner stated the Veteran's service-connected chronic renal insufficiency and erectile dysfunction do not impact the Veteran's ability to work. Based on the evidence of record, the Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable solely because of his service-connected disabilities. The Board acknowledges that the pain from the Veteran's feet, back, and lower extremities could result in impairment in occupational functioning. Specifically, VA examiners found that these disabilities impact his ability to sit, stand, or walk for prolonged periods of time, which is represented by the currently assigned disability ratings. The evidence does not indicate that those symptoms would be so severe as to preclude the Veteran from securing substantially gainful employment. There are also no medical opinions indicating that the Veteran's chronic renal insufficiency, hypertension, circadian rhythm sleep disorder, coronary artery disease, and erectile dysfunction impair his ability to work, nor has the Veteran presented argument that these disabilities prevent him from working. Moreover, he was employed full-time as a respiratory therapist until 2018. The record does not contain any evidence that such employment was less than substantially gainful or sheltered at any time. Although the Board finds insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of service-connected disabilities and, thus, finds referral for extraschedular consideration is not warranted, the Board nonetheless is required to consider the merits of the Veteran's TDIU appeal. In that regard, the Board finds TDIU is not warranted here on an extraschedular basis because the Veteran's service-connected disabilities do not, either alone or in combination, render him unemployable. Again, while the Veteran's feet, back, and lower extremity disabilities clearly cause some physical limitations, the evidence as a whole does not indicate that he is unable to maintain employment at this time and, in fact, opine to the contrary. The most persuasive evidence of record is against finding that the Veteran's service-connected disabilities alone are to a degree that they render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. The benefit of the doubt doctrine is therefore not for application as to this matter. See Lynch v. McDonough, 21 F.4th (Fed. Cir. 2021). Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.