Citation Nr: 22028014 Decision Date: 05/11/22 Archive Date: 05/11/22 DOCKET NO. 14-25 887 DATE: May 11, 2022 ORDER Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (femoral nerve impairment) is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve impairment) is denied. Entitlement to total disability rating based on individual unemployability (TDIU) prior to March 19, 2021, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the evidence is not in approximate balance, but persuasively against a finding that the Veteran's left and right radiculopathy (femoral nerve impairment) were manifested by more than moderate, incomplete paralysis. 2. Throughout the appeal period, the evidence is not in approximate balance, but persuasively against a finding that the Veteran's service-connected disabilities alone prevented her from obtaining or maintaining substantially gainful employment consistent with his education, training, and experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve impairment) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to December 1985. These claims are on appeal from a July 2012 rating decision. While not initially adjudicated at the time of that rating decision, the Veteran's claims for increased ratings for her bilateral lower extremity radiculopathy (manifested by femoral nerve impairment) and entitlement to TDIU prior to March 19, 2021, are part and parcel of the claim for an increased rating for a back disability, which was adjudicated in that rating decision. See Chavis v. McDonough, 34 Vet. App. 1 (2021); see also Rice v. Shinseki, 22 Vet. App. 4478 (2009). The Veteran's claim for an increased rating for her low back disability was initially before the Board in April 2018 and was denied. The Veteran timely appealed that decision to the Court of Appeals for Veterans Claims (Court), and in October 2018, the Court granted an Order adopting a Joint Motion for Remand (JMR) vacating the Board's April 2018 decision and remanded the issues to the Board for development consistent with the JMR. The Veteran's claim for a low back disability was, in pertinent part, remanded by the Board in May 2019 and December 2020. During the pendency of this appeal, in an April 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased evaluation of 40 percent for the low back disability, effective March 19, 2021. The AOJ also granted service connection for left and right lower extremity radiculopathy (femoral nerve impairment) and assigned separate 20 percent ratings for each extremity under Diagnostic Code 8526 (which contemplates femoral nerve impairment; additionally, the AOJ granted service connection for left and right lower extremity radiculopathy (sciatic nerve impairment) and assigned separate 20 percent ratings for each lower extremity under Diagnostic Code 8520 (which contemplates sciatic nerve impairment). See 38 C.F.R. § 4.124a. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that the Board has jurisdiction to address ratings for associated radiculopathy without requiring a separate Notice of Disagreement as to the radiculopathy ratings when those issues were part of a veteran's claim for an increased rating; thus, pursuant to Chavis, those issues were automatically returned to the Board following the April 2021 Supplemental Statement of the Case (SSOC). In a September 2021 rating decision, the AOJ continued the 20 percent ratings for left and right lower extremity radiculopathy (femoral nerve impairment) and also granted entitlement to TDIU effective July 12, 2021. In an October 2021 rating decision awarded an earlier effective date of March 19, 2021, for the award of TDIU. As entitlement to TDIU has not been granted for the entire period on appeal, whether entitlement is warranted prior to March 19, 2021, is still before the Board. In January 2022, the Board denied the Veteran's claims for a rating in excess of 40 percent for a low back disability and also denied ratings in excess of 20 percent for each lower extremity based on radiculopathy with sciatic nerve impairment. Thus, those issues are not before the Board currently. In January 2022, the Board remanded the Veteran's remaining claims for increased ratings in excess of 20 percent for each lower extremity based on radiculopathy with femoral nerve impairment for additional development and readjudication. The claims for increased ratings for left and right lower extremity radiculopathy (femoral nerve impairment) were remanded for initial consideration of all the evidence added to the file since the April 2021 rating decision, which was accomplished by way of a February 2022 SSOC. The Board remand also directed the AOJ to refer the Veteran's claim to the Director of Compensation Service for an advisory opinion regarding entitlement to TDIU on an extraschedular basis prior to March 19, 2021, which was accomplished in February 2022. The Board notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a veteran desires help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (femoral nerve impairment) 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve impairment) The Veteran's left and right femoral nerve impairment are each separately rated as 20 percent disabling, effective March 19, 2021, under Diagnostic Code 8526, which specifically contemplates femoral nerve impairment. She is claiming higher ratings are warranted. Involvement of the femoral nerve (affecting the upper leg, i.e. the quadriceps muscles) is evaluated under Diagnostic Code 8526, which provides that a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 30 percent rating is assigned for severe incomplete paralysis. A maximum 40 percent rating is warranted for complete paralysis of the quadricep muscle. 38 C.F.R. § 4.124a, Diagnostic Code 8526. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The words "slight," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. At a March 2021 examination, straight leg tests were positive bilaterally. Muscle strength testing revealed 2/5 in bilateral hip flexion, 3/5 in bilateral knee extension, and 4/5 in ankle plantar flexion, ankle dorsiflexion, and great toe extension. Reflexes were hypoactive in the bilateral knees and ankles and sensation to light touch testing was normal in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The Veteran reported experiencing severe constant pain and severe intermittent pain in the bilateral lower extremities; she also acknowledged mild paresthesias and/or dysesthesias and mild numbness in the bilateral lower extremities. The examiner found there was involvement of the L2/L3/L4 nerve roots (femoral nerve) bilaterally and involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve) bilaterally. There was no muscle atrophy. At a July 2021 VA thoracolumbar spine examination, the Veteran reported radiculopathy symptoms as moderate intermittent pain and moderate paresthesias and/or dysesthesias; she denied constant pain and numbness. The examiner found impairment of the femoral nerve bilaterally. Muscle strength testing was normal in bilateral hip flexion bilateral ankle plantar flexion, and bilateral ankle dorsiflexion; bilateral knee extension and bilateral great toe extension were measured at 4/5 strength. Reflexes were normal in the bilateral lower extremities. Sensory examination was normal aside from decreased sensation in the foot/toes in the right lower extremity and in the left upper anterior thigh. At a September 2021 VA thoracolumbar spine examination, the Veteran reported sharp and shooting back pain that radiated down to her buttocks into her hips and legs, causing muscle spasm and tingling sensations; she denied numbness. The Veteran exhibited normal muscle strength testing in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension; there was no muscle atrophy. Reflexes were normal in the bilateral knees and ankles. Sensation was decreased in the bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. She acknowledged moderate, constant pain in her lower extremities and mild paresthesias and/or dysesthesias bilaterally. There was no muscle atrophy. The Veteran was afforded a September 2021 VA peripheral nerves examination and impairment of the sciatic nerve was noted bilaterally, which the examiner described as mild, incomplete paralysis; the femoral nerve was found to be normal bilaterally. She described sharp, shooting pain that originated in her low back and traveled posteriorly to her buttocks, hips, posterior knees, legs, and feet; she denied lower extremity numbness. She acknowledged moderate, constant pain in her lower extremities and mild paresthesias and/or dysesthesias bilaterally. Muscle strength testing of the lower extremities was normal and reflexes in the lower extremities were normal. Sensory examination revealed decreased sensation in the bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The examiner found no trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.) attributable to peripheral neuropathy. Following a review of the evidence of record, the Board finds that ratings in excess of 20 percent for left and right lower extremity radiculopathy (femoral nerve impairment) are not warranted as the evidence is not in approximate balance, but persuasively against a finding that her symptoms are more than moderate. Although the Veteran has, at times, described her symptoms as "severe," the Board finds her symptoms do not rise to the level such that the next higher 30 percent rating is warranted. Reflexes were generally normal, at times hypoactive, but never absent. Although muscle strength testing was decreased in March 2021, thereafter it has generally been normal or slightly decreased (4/5 strength). There is no evidence of trophic changes. While sensation has been decreased at times, the Veteran has consistently denied numbness at her VA examinations. Significantly, while she indicated at her September 2021 peripheral nerves examination that her "legs are too painful to do anything," in January 2022, the Veteran reported she was walking a lot around the house and had been performing quad strengthening exercises; she described pain and numbness in her left knee only. In March 2021, in connection for treatment with her service-connected knees, she indicated that she wore her knee brace, particularly when she had to do a lot of walking and that it was doing ok. July 2020 notes indicate she walked frequently. Although she has fallen twice during the appeal period, there is no indication this was due to her bilateral lower extremity radiculopathy; rather, she acknowledged one fall was due to slipping on ice and another was in the shower due to water and soap. In September 2019, the Veteran reported to a provider that walking caused back pain but did not mention any radicular symptoms affecting her ability to walk; that same month she indicated she walked for exercise as tolerated. Based on the foregoing, the Board finds the evidence in not in approximate balance but weighs against a finding that the Veteran's symptoms are more than moderate, and therefore, ratings in excess of 20 percent for her left and right lower extremity radiculopathy (femoral nerve impairment) must be denied. 3. Entitlement to TDIU prior to March 19, 2021 The Veteran is claiming she is unemployable due to her service-connected disabilities Legal Criteria Total disability ratings will be assigned "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). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). However, an award of TDIU does require that the claimant show an inability to secure and follow substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16. Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where the percentage requirements for schedular TDIU are not met, TDIU may nevertheless be assigned on an extra-schedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities; however, the Board is precluded from assigning extra-schedular TDIU in the first instance. 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Factual Background and Analysis The Veteran is claiming she is unable to obtain or maintain a substantially gainful occupation consistent with her education and experience due to her service-connected low back disability, migraines, bilateral lower extremity radiculopathy (sciatic and femoral nerve impairment), and bilateral knees. See July 2021 TDIU Application. She indicated that she has been turned down from jobs because her service-connected disabilities require accommodations and also restrict her from certain activities; she stated she was unable to walk, stand, or lift without assistance due to her back, knees, and nerves. See id. Further, she stated her migraines prevent her from returning to work because when she has them she must stay in a quiet dark area. See id. Her highest level of education achieved is an Associate degree and she worked as a registered nurse throughout her career. See id. She worked at her most recent job from October 2002 to March 2018 at a school and would work approximately 75 hours a week. See id. Information received from her prior employer reflects she worked approximately 37.5 hours a week as a school nurse, that she retired due to disability, and that her last day of employment was February 18, 2018. See August 2021 Employment Information. Prior to March 19, 2021, in pertinent part, the Veteran's service-connected disabilities included: migraine headaches (rated as 30 percent disabling throughout the appeal period); a low back disability (rated as 20 percent disabling throughout the appeal period); right and left knee patellofemoral syndrome with degenerative changes (each rated separately as 10 percent throughout the appeal period); and a scar of the back (rated as noncompensable beginning December 18, 2017). During the appeal period, the Veteran's combined rating has been 60 percent. Vocational and rehabilitation records dated August 2007 reflect the Veteran no longer wanted to work in the social services or nursing area when she retired and that she wanted to train as a gemologist, as she enjoyed working with gems and wanted to learn more for a possible home business. In her application, she indicated she experienced frequent headaches lasting for days, irritability, and difficulty standing and sitting for long periods of time, as well as insomnia. She indicated her service-connected disabilities prevented her from lifting and extensive sitting or standing. The vocational rehabilitation counselor informed her that she was gainfully employed in a suitable position, and that though she has a handicap to employment, she had a steady, suitable place of employment and an employer that had made accommodations for those times when she has difficulties. The record contains an October 2007 letter from the Veteran's employer acknowledging that she experiences migraine headaches and indicating that they are "a facility that understands and recognizes medical conditions . . . [t]herefore, [they] have provided reasonable accommodations for [the Veteran] in order for her to continue to be effective in her job performance." An October 2007 letter from the Veteran's immediate supervisor discusses the Veteran's history of headache problems, and their frequent and debilitating effects on her job performance. The supervisor explained that the Veteran's break time are divided so she could have more frequent rest periods as needed to lessen her stress. The supervisor suggested the Veteran keep a record of her occurrences and noted more than 70 days that calendar year thus far when the Veteran experienced symptoms. A September 2010 letter from a coworker indicates that the coworker had witnessed the Veteran experience painful back and migraine headaches which interferes with her ability to function and that she was unable to lift or bend but tried to make up for that in other ways. The coworker identified an incident where the Veteran experienced a muscle spasm during a class and indicated the Veteran was screaming and crying in pain. A November 2010 letter from another coworker indicates that the Veteran had to leave work several times in the past few years to go home due to severe headaches and back pain; the Veteran often walked leaning forward, which was a "sure sign" she was guarding her lower back. The coworker stated that the Veteran often had to ask for help lifting patients in a wheelchair or turning children from side to side due to back pain and that if the Veteran was not challenged with constant headaches and back pains, the coworker felt she would be able to do more to help the children they serve. At a February 2018 VA thoracolumbar examination, the Veteran informed the provider that she was a school nurse, that she injured her shoulder there and had not been back, and that she was trying to retire. She stated that in the past year she did not lose any days from work due to her service-connected back disability. She reported limitations of sitting for "maybe one hour." She indicated she was only able to walk a few yards, yet the examiner noted the Veteran was observed walking 200 feet from the waiting room to the examination room without a break. Regarding standing, the Veteran stated she could stand for about five minutes and that after that she needed to lean on something. VA treatment records dated February 2018 reflect the Veteran injured her shoulder while performing her duties as a school nurse and she had not returned to work; April 2018 records note the Veteran was retired and that she used to work at a school for children with special needs. August 2018 treatment records demonstrate the Veteran received bilateral knee braces which seemed to help when she walked; she continued to complain of stiffness and achiness in her knees but indicated her pain was a lot better since she began therapy. She indicated she felt comfortable managing her symptoms on her own outside of the clinic. November 2018 records indicate the Veteran experienced left shoulder pain (a nonservice-connected disability) for the past three years and that she wished to pursue surgical intervention. In August 2019, the Veteran reported an increase in stiffness in her knees but that she continued to find relief with stretching and her home exercise program. She acknowledged difficulty sleeping due to knee pain. September 2019 treatment records note the Veteran continued to experience back pain and had a flare-up for the past week; she reported that she has tried physical therapy in the past and that she walks for exercise as tolerated. September 2020 records reflect the Veteran's right knee pain increased recently; it began four weeks ago when riding her bicycle. January 2021 records note that aggravating factors affecting the knee include standing, walking, changing position, and making quick turns with the right knee. March 2021 records demonstrate the Veteran was wearing knee braces when she has to do a lot of walking and that it was doing "OK." She stated she had to do a lot of walking the other day and that although she was using her rolling walker, she was tired after. A February 2021 treatment record indicates the Veteran experienced headaches two to three times a week with occasional migraine pain; she stated she used to have them more severely but now recognized them and sits quietly and that she had been able to manage them more since retirement. Regarding her knees, it was noted her knee injury could limit mobility and that she was participating in therapy approximately once a week; she indicated she received a tricycle for her birthday last year and she was looking forward to riding it once the weather got better. In a November 2021 statement, the Veteran stated she was no longer able to return to her job as a school nurse due to physical restrictions related to her duties; she also indicated she had restrictions on working hours and was not allowed to work overtime. She indicated that she was provided a special chair/seating due to her back pain and that other accommodations included "medical treatments, PT, times of migraine headaches," and that she had attempted to continue her employment as best as possible. She stated she had undergone back surgery, however, the Board notes that the surgery took place in 2016 (outside the appeal period) when a neurostimulator was inserted in the lumbar spine region. The record contains a February 2022 Advisory Opinion from the Executive Director of Compensation Service which found that the Veteran's service-connected conditions did not render her unemployable. The Board is not bound by this determination and is reviewing the case de novo. Following a thorough review of the evidence of record, and with consideration of the Veteran's statements, the Board finds entitlement to TDIU must be denied. Initially, the Board notes that in determining whether entitlement to TDIU is warranted, it may only consider service-connected disabilities when service-connection is in effect. Thus, for example, any bilateral lower extremity radiculopathy in the record prior to March 19, 2021, (the date service connection was awarded) may not be considered in the instant decision. Thus, in the analysis below, the Board will not discuss any service-connected disabilities prior to the date service-connection was warranted, and there is no prejudice to the Veteran in doing so. Initially, the Board acknowledges that the Veteran's service-connected disabilities alone would likely preclude her from returning to work in the healthcare field, as it has been shown her back and knee pain makes it difficult to tend to patients (i.e. assisting with wheelchair transfers). However, entitlement to TDIU is not simply because the evidence shows a veteran would be unable to return to the specific job or line of work performed in the past or that he or she would make a lower salary than in the past. Rather, VA regulation provides 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." 38 C.F.R. § 4.16(b) (emphasis added). A "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income prior to his having been awarded a 100% rating based on individual unemployability." Faust v. West, 13 Vet. App. 342, 356 (2000). Accordingly, the Board will consider whether the evidence demonstrates that the Veteran was capable of sedentary employment during the appeal period. VA regulations contain many factors to be considered as part of a TDIU analysis. See 38 C.F.R. §§ 4.16, 4.19. Whether a veteran can perform "sedentary work", or "sedentary employment" is not among them. In fact, neither the term nor any similar phrase is mentioned, much less defined, in any relevant VA statute or regulation. The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). Merriam-Webster online dictionary defines sedentary as "doing or requiring much sitting" (as it pertains to a job), and therefore, the Board adopts this definition in its analysis. See https://www.merriam-webster.com/dictionary/sedentary (last visited April 15, 2022). In considering the collective effect of the Veteran's service-connected disabilities during the time in question (migraine headaches, low back, bilateral knees, back scar), the Board finds the evidence is not in approximate balance but persuasively weighs in favor of a finding that she is capable of obtaining and maintaining a substantially gainful sedentary occupation, consistent with her education and experience. Sedentary employment to encompass a wide variety of administrative and clerical jobs, or other forms of employment that would not require the Veteran to spend a significant amount of time on her feet, standing or walking, and which would be performed in a seated position a large majority of the time. With the evolution of standing desks, the Veteran would be able to alternate sitting and standing. Thus, the Board determines that during the time period in question, and with consideration of her service-connected disabilities only, along with her education, training, and employment history at the time, that she would have been able to obtain or maintain various substantially gainful occupations which would have provided her with a living wage. The Board finds she would be able to work as a medical transcriber, given her past experience in the healthcare field, which does not require a high level of computer skill set. Additionally, she would be able to work as a hand assembly line worker, a packer/shipper, wrapper, or movie ticket seller, all with reasonable accommodations for alternating between standing and sitting to accommodate her back and knee disabilities. While the Veteran has claimed, at times, that her knee disabilities disrupt her sleep, she has not indicated that her sleep is so disrupted that it would affect her ability to concentrate in the workplace. Further, she has acknowledged that her migraine headaches have lessened in severity since retiring in 2018. In particular, working as a medical transcriber would allow the Veteran to have a flexible workday and, likely, to work from home, allowing her to take breaks as needed. To the extent the Veteran has claimed accommodations have been made in the past at work, the Board notes that the Americans with Disabilities Act (ADA), in addition to other federal and state laws, open the doors for people with disabilities to apply for, obtain, and maintain gainful employment. 42 U.S.C. §§ 12101, et seq. (2012). The ADA requires employments to make "reasonable accommodations" for people with disabilities in the application and employment processes unless such accommodation creates an "undue hardship" for the employer. 42 U.S.C. § 12111(9), (10). With respect to the Veteran's disabilities, such "reasonable accommodation" may include "making existing facilities used by employees readily accessible to and usable by individuals with disabilities" and "part-time or modified work schedules." 42 U.S.C. § 12111(9). Thus, the Board finds that with reasonable accommodations such as providing the Veteran with a standing desk or the ability to sit/stand in addition to a modified or part-time work schedule would allow her to obtain and maintain a substantially gainful occupation throughout the appeal period. With respect to the Board's reference to part-time work above, the Board notes that nowhere in VA laws and regulations does substantially gainful employment equate to full-time employment. In evaluating a TDIU claim, the Board is not required to analyze actual opportunities available on the job market. See Pederson v. McDonald, 27 Vet. App. 276, 287 (2015). However, the Board does have a duty to rely on actual evidence of employability and analyze such evidence in concluding whether a veteran could perform work that would produce sufficient income to be other than marginal. See Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Rather, VA regulation provides 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." 38 C.F.R. § 4.16(b) (emphasis added). A "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income prior to his having been awarded a 100% rating based on individual unemployability." Faust v. West, 13 Vet. App. 342, 356 (2000). The Veteran was employed in a full-time capacity through approximately February 2018, and there is no indication that employment was marginal or in a protected work environment. During the appeal, the Census Bureau has found that the poverty threshold for one person has been between $13,064.00 (in 2018) and $14,097.00 (in 2021, which represents the most recent data available). See United States Census Bureau, Poverty Thresholds, available at: https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed April 15, 2022). Thus, if the Veteran was earning $15.00 per hour working a job 20 hours a week, her gross income would be over $15,000.00, which exceeds the poverty threshold. The Board acknowledges that the Veteran's representative has argued that VA examiners have not adequately assessed her disabilities and that they are more severe than represented by VA examiners. See November 2021 Appellate Brief. Unfortunately, the representative did not provide specific reasons for why they believe examinations were inadequate, and therefore, the Board cannot fully respond to that argument. However, the Board notes that the Veteran's statements regarding functional impairment have been documented in VA examination reports. Moreover, the Veteran has been provided the opportunity to submit any additional evidence, to include lay statements regarding her functional impairment, which she has done and which the Board has considered; further, VA treatment records document her functional impairment. The Board acknowledges that the Veteran's service-connected disabilities may cause challenges in occupational functioning and may require an employer to make reasonable accommodations and finds the Veteran would be capable of a substantially gainful occupation with those reasonable accommodations during the appeal period. The Board also recognizes that the Veteran's service-connected disabilities may cause her to miss work at times, which is the purpose of the assigned compensable ratings for those disabilities. See 38 C.F.R. § 4.1 (stating that the percentage ratings in the rating schedule "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations"). However, the fact that reasonable accommodations would be required to facilitate employment and the fact that the Veteran may miss work at times due to her service-connected disabilities is insufficient to warrant entitlement to TDIU. Moreover, to the extent the Veteran has indicated she has been turned down for jobs because of the accommodations her disabilities would require, the Board still finds she is capable of a substantially gainful occupation during the time in question, and emphasizes again that entitlement to TDIU is not warranted simply because the evidence shows a veteran would be unable to return to the specific job or line of work performed in the past or that he or she would make a lower salary than in the past. Finally, while the Board recognizes that entitlement to TDIU on an extraschedular basis was referred to the Director of Compensation and Pension service, the determination of whether a case should be referred for an extraschedular consideration under 38 C.F.R. § 4.16(b) is a lower standard than a determination on whether TDIU is warranted. See Snider v. McDonough, 33 Vet. App. 1 (2021). As the evidence is not in approximate balance, but persuasively against a finding that the Veteran's service-connected disabilities alone prevented her from obtaining or maintaining substantially gainful employment consistent with her education and experience, entitlement to TDIU must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.