Citation Nr: 22018457 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 12-05 009 DATE: March 29, 2022 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1971 to December 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) This matter was most recently remanded in August 2021. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU The Veteran contends that he retired from his job in 1990 due to his service-connected disabilities. See April 2010 VA 21-8940. In more recent submissions, the Veteran's representative has argued that his back condition alone precludes him from maintaining substantial employment. See, e.g, January 2022 Appellate Brief. For the reasons that follow, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is denied. In the Board's May 2019 remand, the Board found the issue of entitlement to a TDIU on an extraschedular basis was raised by the May 2018 VA examination and opinion which indicated the Veteran was precluded from maintaining substantial employment due to his service-connected back disability. Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. During the applicable rating period here, the Veteran was service-connected for the following disabilities: sleep apnea, rated at 50 percent from April 21, 2021; paravertebral lumbar myositis, rated at 20 percent from January 2009, 100 percent from January 11, 2017, 20 percent from March 1, 2017, and 40 percent from May 16, 2018; sinusitis rated at 10 percent from January 2009; and allergic rhinitis rated at 0 percent from January 2009 and 10 percent from September 2016. The Veteran's combined rating was 40 percent from January 2009, 50 percent from September 2016, 100 percent from January 2017, 50 percent from March 2017, 60 percent from May 2018, and 80 percent from April 21, 2021. Here, the Veteran did not meet the schedular percentage requirement until April 21, 2021; however, he may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b), under an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). For the reasons discussed below, the Board finds that prior to April 21, 2021, the evidence does not indicate that a TDIU on an extraschedular basis is warranted. The Board further finds that a TDIU on a schedular basis is not warranted from April 21, 2021 forward. The record reflects the Veteran worked as a clerk and salesclerk from 1979 to 1981, and as a warehouse supervisor from 1981 to 1984. The Veteran retired in 1990 from his job as an operator at a pharmaceutical company, for which he worked for six years. The Veteran reported retiring due to his service-connected disabilities. The Veteran has a bachelor's degree in business. See December 2009 and May 2011 VA examinations. The Board remanded the matter in May 2019 and referred the claim to the Director of Compensation and Pension Service for extraschedular consideration. The Director rendered a decision denying extraschedular entitlement in March 2021. The Director stated in an Advisory Opinion that while the Veteran's service-connected conditions cause functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to these conditions. Accordingly, entitlement to an extraschedular TDIU was not established. By way of rationale, the Director cited to the Veteran's history of service-connected disabilities; his receipt of Social Security Administration (SSA) disability benefits; and the noted functional impairment documented in the record, to include difficulty with standing, sitting, and driving. However, it was not found that such a disability picture would entirely preclude gainful employment. The Board can review the decision of the Director regarding entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the remaining question is whether the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. The Veteran's VA and private treatment records, and the VA examinations of record, reflect that his lumbar paravertebral myositis causes chronic back pain and spasms resulting in some functional limitations in his ability to stand and walk for prolonged periods, lift heavy objects, and twist and bend over at the waist. However, the record does not reflect any work-related impairment due to his other service-connected disabilities. According to (SSA) records dated May 2009, the Veteran was found disabled since September 1990 due to depression and lumbar radiculopathy. Neither of these conditions are service-connected, and as explained in more detail below, the VA examinations of record have been able to differentiate the functional impact between his service-connected and nonservice-connected back conditions. In a March 2009 VA spine examination, the examiner noted spasms with a normal gait and no lumbar lordosis. Flexion was limited to 80 degrees and extension limited to 18 degrees with objective evidence of pain on active range of motion. Regarding occupational and functional limitations, the examiner noted that the Veteran was employed at a pharmaceutical company until 1990 when he retired due to psychiatric problems. The examiner noted that the Veteran's low back disorder moderately impacts his employment. At the December 2009 VA spine examination, the Veteran reported retiring due to back pain and depression. The examiner noted that the Veteran's low back disorder moderately impacts his employment. In a March 2010 private examination, Dr. N.A. noted that the Veteran experiences constant back spasms with radiating pain to his lower extremities. The physician noted that the Veteran's back pain, bilateral knee, ankle, and hip pain, and neck pain prevent him from sitting or standing for prolonged periods and limits heavy lifting. However, the Veteran is not service-connected for any knee, ankle, hip, or neck disabilities, and Dr. N.A. did not indicate which limitations were caused by his service-connected disabilities. Similarly, in a letter dated February 2012, the Veteran's physician Dr. R.E.H. reported that the Veteran's physical and mental health has become incapacitating over time. However, the physician listed nine separate diagnoses upon which this opinion was based, most of which are not service-connected disabilities. As both opinions are based on the impact of nonservice-connected and service-connected disabilities without differentiation, both opinions are given little probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The March 2012, September 2016, and October 2020 VA examiners opined that lumbar spondylosis and disc disease are not related to service; instead, they are due to aging. Additionally, VA treatment records repeatedly associate the Veteran's back pain and radiation of pain to lumbar disc disease rather than myositis. See, e.g., July 2014, January 2017, and November 2020 VA treatment records. The September 2016 and October 2020 VA examiners opined that the service-connected back condition has no impact on his ability to work. At the May 16, 2018 VA back examination, the examiner noted that the Veteran's January 2017 lumbar fusion aggravated his condition of lumbar strain. The Veteran reported daily flare-ups which last hours. The Veteran also reported functional loss of decreased ability to stand, walk, and sit. Range of motion testing revealed flexion to 20 degrees with extension to 30 degrees. The examiner noted that this limited range of motion is normal for the Veteran due to his spasms. Pain was present at the paravertebrals on weight-bearing. While there was spasm and guarding, neither resulted in abnormal gait or spinal contour, and there were no additional factors of disability. There was no evidence of impaired strength, reflexes, or sensation, atrophy, intravertebral disc syndrome (IVDS), or ankylosis. Regarding occupational and functional limitations, the examiner stated that the Veteran's thoracolumbar spine condition does not impact his ability to work. However, the examiner further remarked that the Veteran's "actual condition precludes [him from] gainful employment due to severe pain and spasms which limit his tolerance for ambulation, standing, [sitting] and even driving up to a point; he cannot fulfill any job duties even clerical ones." In the May 2019 remand, the Board found this opinion warranted referral to the Director, Compensation Service for consideration of a TDIU on an extraschedular basis. The Veteran's reports of chronic low back pain continued over time, as evidenced in August 2018 and September 2019 VA treatment records. Examinations reveal grossly adequate range of motion and muscle tone with no neurological deficits. A March 2020 VA treatment note indicates new onset bilateral leg pain radiating from his back. In an October 2020 VA back examination, the Veteran denied flare-ups or functional loss. Flexion was limited to 50 degrees and extension was limited to 20 degrees with pain, noted as not resulting in functional loss. There was no objective evidence of localized tenderness with pain on palpitation, pain with weight-bearing or nonweight-bearing, guarding, muscle spasms, ankylosis, the use of assistive devices, or signs of radiculopathy. The examiner noted the service-connected myositis is a progressive inflammation of the muscles and is not in any way related to the lumbar arthritis or disc disease. Thus, regarding occupational and functional limitations, the Veteran's back condition, to include symptoms and limited range of motion, would cause no functional impact in either active or sedentary activities to include work. In October 2021 the Veteran was recommended for a rollator for his reports of sudden loss of lower extremity strength during pain exacerbations. He reported difficulty standing up and giving way of his legs while walking. As above, the weight of the evidence indicates that the Veteran's most severe functional limitations due to his lumbar spine are largely related to nonservice-connected degenerative disc disease. Viewing the record as a whole, therefore, the May 2018 VA examiner's opinion that the Veteran is precluded from all work activities due to his back spasms is outweighed by voluminous VA and private treatment records indicating that his occupational limitations were primarily due to nonservice-connected conditions including lumbar degenerative disc disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). While the Veteran asserts that his service-connected back disability is the primary reason behind his unemployability, the Board has also considered whether the Veteran's other service-connected disabilities cause additional limitations impacting his ability to follow a substantially gainful occupation. In short, the Board finds no significant additional work-related limitations resulting from the Veteran's service-connected sleep apnea, headaches, sinusitis, and allergic rhinitis. The Veteran was most recently examined for headaches in a May 2018 VA examination during which he reported two to three headaches per week. The examiner found the Veteran did not have prostrating attacks, and that his headaches did not impact his ability to work. Additionally, the April 2021 VA examinations for his sleep apnea, sinusitis, and allergic rhinitis conditions found no occupational impact from any of the conditions. See also September 2016 VA examinations. At these examinations, the Veteran reported daytime sleepiness from sleep apnea and stable sinusitis and allergic rhinitis with medications. Thus, the Board finds the Veteran's service-connected sleep apnea, headaches, sinusitis, and allergic rhinitis do not impact his ability to follow a substantially gainful occupation. The central inquiry is now "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529(1993). Consideration may be given to a Veteran's level of education, special training, and previous work experience, but advancing age and impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38C.F.R. §§ 4.16, 4.19. Considering the evidence of record, the Board finds that the Veteran's service-connected disabilities did not prevent him from securing or following a substantially gainful occupation. While the Veteran is surely limited in his ability to perform certain occupational tasks, which is reflected by his combined ratings over the appeal period, he retains the ability to perform work that is not physically demanding. For example, the Veteran could engage in work that is performed from a seated position primarily, and which allows him to take short breaks regularly throughout the day to stand and stretch. He could also lift light weights regularly, such as paper documents and other small items. In a Work History Report submitted to the SSA, the Veteran described all of his prior work as requiring standing and walking for the majority of the day. However, he also performed activities such as writing reports and supervising others, and as noted above, has a Bachelor's degree in business. Thus, the Board finds the Veteran has the occupational experience, skills, and education to perform work that is less physically demanding than his prior jobs, such as administrative or clerical work. In making this determination, the Board finds that the Veteran was competent to state why he stopped working. However, the Veteran has indicated in various contexts that his nonservice-connected psychiatric disability also contributed to his inability to work. See, e.g, December 2009 VA examination; Medical Treatment Records Furnished by SSA. The Veteran's lay statements regarding his inability to work are outweighed by the VA medical evidence discussed above. In denying the Veteran's TDIU claim, the Board has considered the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue under 38 C.F.R. § 4.16(b). The Board concludes that the evidence supporting an award of a TDIU rating on the basis that the Veteran could not work due to his service-connected disabilities is outweighed by the negative evidence of record discussed above. Finally, though the Board remanded the Veteran's claim for a TDIU for an extraschedular opinion, at no point did the Board determine that the Veteran met the criteria for a TDIU on a schedular or extraschedular basis. Instead, it is clear from the development that the Board sought to ensure that all due process was afforded to the Veteran without making any findings, positive or negative, as to the underlying claim. Accordingly, the Board is not reversing or changing any finding as to a material fact at issue in this decision. Accordingly, the Veteran did not meet the criteria for a TDIU rating on an extraschedular or schedular basis throughout the entire period on appeal. The evidence of record persuasively weighs against the claim, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.