Citation Nr: 25001982 Decision Date: 02/11/25 Archive Date: 02/11/25 DOCKET NO. 13-13 957 DATE: February 11, 2025 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The percentage requirements for schedular entitlement to TDIU have been met. 2. The Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation, including when taking into account his work experience, vocational attainment, education, skills, and training. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1985 to February 1988, and from November 1988 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter to the agency of original jurisdiction (AOJ) for further development in October 2017, February 2020, and August 2021. In a December 2022 decision, the Board denied entitlement to TDIU. By a November 2023 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) filed by the Veteran and VA's Office of the General Counsel and vacated the Board's decision. It remanded the matter to the Board for action consistent with the terms of the joint motion. In that regard, the parties to the JMR found that the Board had not considered the Veteran's work history in denying TDIU. The Board then remanded the matter to the AOJ for further development in March 2024. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is in the claims file. TDIU For the following reasons, the Board finds that the criteria for TDIU have not been met. A. Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must fully consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.1 (a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found to be unable to work due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person." 31 Vet. App. 58, 72-73 (2019). As for the "noneconomic component," the Court held that this refers to the individual claimant's "ability to secure or follow" an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran's occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a "checklist that must be completely run through in every case," and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance-which includes but is not limited to equipoise-the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-doubt-rule does not apply. Id. at 781-82. B. Analysis As an initial matter, the percentage requirements for entitlement to TDIU on a schedular basis have been met. Specifically, the Veteran has the following service-connected disabilities: a cervical spine disability, rated at 20 percent; right upper cervical radiculopathy, rated at 20 percent; left upper cervical radiculopathy, rated at 20 percent; a fractured right clavicle, rated at 10 percent; primary insomnia disorder, rated at 10 percent, and headaches associated with the cervical spine disability, rated at 0 percent. The combined rating of his service-connected disabilities is 60 percent. The Veteran's service-connected disabilities are considered one disability for TDIU purposes as they all result from a common etiology or single accident. Specifically, VA medical opinions found that the above service-connected disabilities all resulted from the same in-service biking accident, and service connection has been awarded for them on that basis. Therefore, they are considered one disability for TDIU purposes with a rating of 60 percent, which satisfies the percentage requirements for schedular TDIU. See 38 C.F.R. § 4.16(a). In determining entitlement to TDIU, the Board must first determine if the economic component is satisfied. Based on VA Forms 21-8940 dated in April 2010 and August 2022, and records from the Social Security Administration (SSA) pertaining to a claim for SSA disability benefits, the Board finds for purposes of this decision that the Veteran has not engaged in substantially gainful employment during the period under review. Accordingly, the economic component is satisfied. The Board next must determine if the noneconomic component is satisfied. See Ray, 31 Vet. App. at 72-73. In that regard, the Board must first consider the Veteran's occupational history, education, skill, and training. Id. In an April 2010 application for TDIU (VA Form 21-8940), the Veteran wrote that he worked in property maintenance from 1995 to 2006. In a VA Form 21-8940 received by VA in August 2022, he did not provide a work history, merely stating that he had not worked since 1998 due to chronic neck pain. The SSA records show that in his application for SSA benefits, which he filed in 2010, he wrote that he worked as a race car mechanic for a racing team from 1994 to 1995. He did not report any other work history. His SSA records and VA Forms 21-8940 reflect that he completed high school. He had no other education or training. A January 2011 VA joints examination reflects that he reported working part time in property maintenance, and that he had held such employment for the past 10 to 20 years. He reported past occupations as a race car mechanic from 1993 to 1996, and as a painter from 1996 to 1997. Thus, the record shows that the Veteran's past employment has consisted of more physically active jobs, that he has a high school education, and no other training. The Board next considers whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray, 31 Vet. App. at 72-73. In this case, there is no question that the Veteran's service-connected disabilities would render him unable to secure or follow substantially gainful employment in more physically active jobs such as a mechanic, painter, or in property maintenance. The record shows that he has limited range of motion of the neck and very limited ability to lift. See, e.g., January 2018 VA Neck Conditions Examination. At the March 2017 hearing, he stated that he could not do any lifting or overhead work due to his neck pain. He has also described being in constant pain. See March 2011 VA Form 21-4138 (Statement in Support of Claim). Further, he has stated that he experiences pain and numbness in the hands and drops things. See June 2015 VA Treatment Record. He has gone to many physical therapy sessions for his chronic neck pain, and also received steroid injections, as shown in the VA treatment records. Objective clinical findings show significant pathology of the cervical spine. For example, an August 2016 magnetic resonance imaging study (MRI) showed multilevel degenerative disc disease with moderate to severe foraminal stenosis at some levels and multilevel advance degenerative facet hypertrophy. In a January 2010 statement (VA Form 21-4138), the Veteran wrote that he is unable to work because he cannot use his left arm or leg since 2007. In an April 2010 statement (VA For 21-4138), he wrote that he stopped working because he could no longer use his left side and back due to lack of feeling and chronic pain. In a December 2010 mental disorders examination, the examiner wrote that the Veteran's neck pain was the "primary problem," and "negatively impacts his work because he can't concentrate and it gives him really bad headaches." The examiner stated that likely he would not be a "very reliable" employee given the variability in his neck pain. The examiner noted that some days the Veteran cannot function at all and spends his time in bed. The examiner noted that the Veteran did some "side jobs" to make ends meet, but had not had a full time job in "quite some time." The examiner added that sleep was not a "major issue" in terms of the Veteran's employability. The January 2011 VA neck examination reflects that the Veteran reported progressively worsening neck pain. He took Ibuprofen, tramadol, and methocarbamol to treat the pain. He stated that he "gets tired" with the tramadol. He experienced flare-ups of cervical pain every two to three weeks which were severe and lasted for hours. They were precipitated by lifting and alleviated by rest, medication, and a heating pad. The pain radiated to his left arm to his index and third finger. Sensory and motor examinations of the upper extremities were normal. When asked to describe the effects of the Veteran's neck disability on his usual occupation, the examiner wrote, "limited duty time secondary to pain." In terms of the effects on the Veteran's daily activities, the examiner wrote that it limited his overhead working at home and in his job. The January 2011 VA neurological examination shows findings that the Veteran's bilateral upper extremities had normal sensation, motor strength, and reflexes, and muscle tone. When asked to state the effects of the Veteran's symptoms on his occupation and daily activities, the examiner wrote, "No effects." The January 2011 VA neurological examination also shows that, regarding the Veteran's headaches, he reported that he gets a throbbing headache on a weekly basis. The attacks were not prostrating and ordinary activity was possible. They lasted for hours. He treated them with Ibuprofen and an icepack on his head. Regarding the effects on the Veteran's usual occupation, the examiner stated that the Veteran rests and is able to work at his own pace. He took rests and used medication and an icepack until the discomfort subsided. The SSA records pertaining to the Veteran's claim for SSA disability benefits include a June 2010 residual functional capacity (RFC) assessment for SSA purposes. In that assessment, the Veteran was found to be able to lift 20 pounds occasionally, and 10 pounds frequently, and that his ability to push and/or pull was unlimited. The findings regarding his ability to sit and stand or walk are not relevant to the TDIU issue because service-connected disabilities are not shown by competent medical evidence to affect his ability to sit, stand, or walk. The report states that "inspection of the neck is normal." His upper extremities showed 5/5 motor strength bilaterally. A sensory examination was normal throughout. The examiner found that the Veteran had no manipulative limitations with respect to reaching, handling, fingering, and feeling. The examiner found that the Veteran could "function within the parameters of the RFC." The December 2011 SSA decision states that at a hearing before SSA, the Veteran reported that his last job was in 1997, and that he had to stop due to severe neck pain. He had only tried to work side jobs for a couple of hours. He stated that if he sits/stands for two hours and lifts 5 pounds it bothers his neck. He stated that he gets migraine headaches, numbness, and severe pain in his neck. He took medications but they caused severe drowsiness and he got tired. He stated he was only able to walk 4 blocks, lift/carry 2-3 pounds, and sit for 20 minutes. He did a few jobs around the house like taking out the trash, but hedge trimming aggravated his neck. The SSA decision denied SSA disability benefits, finding that the Veteran's report of the "intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the ... residual functional capacity assessment." VA treatment records show that in 2012 the Veteran attended twelve physical therapy sessions for his neck pain. In January 2013, he was noted to have cervicalgia with symptoms of left upper extremity radicular pain. He was "neurologically intact." In June 2015, he reported that his hands are weak and that he was dropping things. He stated that his hands hurt and his fingers are numb. An August 2015 record shows that he sought consultation for chronic neck pain radiating to both upper extremities and chronic lower back pain radiating to both legs. An October 2016 record states that he was approved for 16 physical therapy visits. Another October 2016 record states that he reported neck pain that is often accompanied by multiple headaches per day which last up to two hours. He had been receiving steroid injections in the neck which decreased the occurrence of the headaches. He stated that the last headache occurred two weeks earlier. A November 2016 private treatment record states that the Veteran reported increasing chronic neck pain which was now radiating into both arms. He also complained of headaches and muscle spasms of the cervical spine which limited functional activities of daily living. He had received three injections a few months earlier which provided temporary symptom relief. But it was noted that the Veteran might require surgery in the future. In the meantime, he was referred for physical therapy to reduce his symptoms. The January 2018 VA neck examination reflects the Veteran's report of chronic neck pain occurring every day. He stated that if he drives a lot or does any lifting the pain gets worse and "that's when he gets migraines." He stated he could not turn his neck "very far." Current treatment consisted of steroid injections, methocarbamol, and a traction machine he used at home. On examination, he had normal forward flexion of the cervical spine and normal left lateral flexion and rotation, but reduced extension and reduced right lateral flexion and rotation, with pain noted on examination with right lateral rotation and right lateral flexion. Regarding the functional impact of the Veteran's neck disability, the examiner found that he would have difficulty lifting anything without getting pain. Neurological examination showed no objective neurological abnormalities of the upper extremities, including with regard to sensation, motor strength, and reflexes. The January 2018 shoulder examination, which was performed to evaluate residuals of the Veteran's clavicle fracture, shows findings of minor abnormalities of the left shoulder that were of no clinical significance and a normal right shoulder. The examiner found that it would not have an impact on the Veteran's ability to work. The January 2018 VA headaches examination reflects that the Veteran reported that his neck hurts and he gets migraines two to three times weekly. He stated he "only gets them when his neck hurts." The typical duration of the headaches was less than one day. Regarding the functional impact, the examiner stated that the Veteran would intermittently have to lie down and rest in a dark room to alleviate the pain. The January 2018 VA neurological examination shows findings that the Veteran had normal sensation, strength, and reflexes of the bilateral upper extremities. The examiner found that the Veteran's upper extremity radiculopathy did not have an impact on his ability to work. The VA treatment records show that in April 2018, the Veteran was seen for a neurosurgical consultation. He reported that driving over 1.5 hours increases his neck pain, and that he had been disabled for approximately four years. He stated that if he lifts anything it aggravates his pain. On examination, his cervical spine had normal flexion, hyperextension, and marked decreased lateral rotation. A neurological examination showed that all muscle groups were 5/5 and a sensory examination was intact in the upper extremities. In August 2018, he reported that his neck pain was a 9 out of 10 in severity. The next day, he called to cancel a procedure due to having too much pain in his neck to tolerate driving. In September 2018, he was seen for re-evaluation. He reported having neck pain and paresthesias in the upper extremities. In November 2018, he reported having pain in his neck, arms, and legs. He described the intensity as being at an 8. Lifting and driving aggravated the pain. An April 2019 neurosurgery consultation states that the Veteran had been seen by an outside provider and that he wished to think about therapeutic options. His symptoms were stable. He had no weakness. His main problem was pain. In September 2019, he was seen for cervical stenosis. It was noted that he had a follow-up appointment with a neurosurgeon the next month. He was still deciding on whether to undergo cervical spine surgery. The January 2021 VA neck examination shows findings of reduced range of motion of the cervical spine in all planes of motion, with pain exhibited in forward flexion and extension. The examiner found that the reduced range of motion did not cause functional loss. The Veteran did not report flare-ups or functional impairment, according to the examiner. On neurological examination, the Veteran had normal sensation, muscle strength, and reflexes of the bilateral upper extremities. The examiner found that the neck disability did not have an impact on the Veteran's ability to work. The January 2021 VA shoulder examination, performed to evaluate residuals of the clavicle fracture, shows findings of reduced range of motion of the shoulder in flexion, abduction, external rotation, and internal rotation, with pain noted on abduction and external rotation. The Veteran reported flare-ups occurring several times per month characterized as moderate. They lasted several hours and were precipitated by lifting with his right shoulder. They were alleviated by rest and medication. Inexplicably, the examiner checked the "no" box next to whether the Veteran reported having functional loss or functional impairment. The examiner found that it did not have an impact on the Veteran's ability to work. The January 2021 VA headaches examination reflects that the Veteran had headaches associated with neck pain that lasted one day, and which were treated with ibuprofen and methocarbamol. The examination report does not specify how often they occurred. The examiner found that they did not have an impact on the Veteran's ability to work. VA treatment records show that in August 2021, during a routine examination, the Veteran's neck was found to be supple and with full range of motion. A neurological examination showed 5/5 strength in the upper extremities. At a February 2022 annual examination, the Veteran reported "no medical complaints." His neck was noted to be supple in a general review of systems. A July 2023 record states that the Veteran reported ongoing neck pain with radiculopathy. On examination, his neck was supple and with full range of motion. Because the findings in the January 2021 examination that the Veteran's cervical spine disability and associated radiculopathy did not cause functional impairment are inconsistent with or did not account for other evidence, and because they were several years old, the Board remanded this case in March 2024 for the Veteran to attend new examinations so that an informed decision could be made. The record shows that examinations were scheduled. However, he stated that he did not want to attend them; he requested that the case be sent back to VA "as is." VA regulation provides, in pertinent part, that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, certain action shall be taken, as specified in the regulation. 38 C.F.R. § 3.655(a). In that regard, the regulation further provides, in pertinent part, that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Here, the issue of entitlement to TDIU stems from an original compensation claim. Because new examinations are necessary to assess the functional impairment caused by the Veteran's service-connected disabilities for purposes of determining entitlement to TDIU, and as he has not provided good cause for not reporting for the scheduled examinations, the Board must make a decision based on the evidence of record. See id. Based on the above evidence, the Board finds that the Veteran would be unable to perform the types of physically active jobs he has done in the past due to his service-connected cervical spine disability and perhaps his associated radiculopathy. However, the available evidence persuasively shows that he would not be prevented from obtaining and maintaining substantially gainful employment in occupations that do not require lifting or prolonged driving and that are otherwise less physically active. In that regard, the competent medical evidence shows that his service-connected disabilities have not affected his ability to stand, walk, bend, twist or rotate his back, or use his arms to grasp, type, or reach. He has no service-connected visual or auditory limitations due to service-connected disabilities. He has reported that driving longer than 1.5 hours increases his neck pain, but that does not show he would otherwise be unable to sit for prolonged periods. Driving necessarily involves turning the neck to determine if there are cars out of range of peripheral vision. The competent medical evidence does not show that his cervical spine disability, radiculopathy of the bilateral upper extremities, cervical fracture, or insomnia would otherwise affect his ability to sit. That said, even if his ability to sit were limited due to service-connected disabilities, he is not shown to be unable to perform the tasks required of substantially gainful employment in occupations requiring prolonged standing or walking but not sitting, so long as he is not required to lift or frequently turn his head. The Court has taken the Board to task in other cases for suggesting possible jobs that a claimant might perform within the limitations imposed by service-connected disabilities and consistent with the claimant's work history, education, skills, and training. So, the Board will not do so here. Indeed, the burden is not on the Board to show that the Veteran can secure or follow substantially gainful employment, such as providing examples of the types of employment he could engage in within the limitations imposed by his service-connected disabilities, including alternative occupations. Rather, the burden is on the claimant "to present and support a claim for benefits." 38 U.S.C. § 5107(a). That means, in this case, that the burden is on the Veteran to show that his service-connected disabilities have been so disabling as to cause not only significant occupational impairment, which is not in question, but to impair his occupational functioning to such a degree as to render him unable to secure or follow substantially gainful employment in past occupations or other occupations reasonably available to him when considering his employment history and educational and vocational attainment. Although the Veteran's past employment has been in more physically active jobs, and while the Board must consider his work history as a factor in the TDIU analysis, there is nothing in the law indicating that a claimant must be found to be able to perform the same types of jobs or jobs involving the same exertional requirements or skills as the jobs the claimant has held in the past. There is no evidence suggesting that the Veteran could not obtain and maintain employment in other types of jobs requiring less or minimal physical exertion, including when considering his high school education, which shows he is able to read, write, and do arithmetic. In so stating, the Board does not mean that only jobs that involve reading, writing, or math are the types of jobs that the Veteran could perform in terms of physical functioning, or that only jobs that involve reading, writing, or math are the types of jobs that require less physical exertion. In other words, the evidence does not suggest that the only jobs involving little or no physical exertion, including with respect to lifting, would instead require the Veteran to read, write, or do math in performing the activities of that job, or would require a high school education. Rather, the Board simply notes that his high school education is a factor that could open up additional job opportunities, including those that might require some ability to read, write, or do basic math in performing the activities required of such jobs. The Board has also considered the physical impact of the Veteran's service-connected disabilities on the nonexertional requirements of substantially gainful employment in a less physically active occupation. In that regard, the evidence shows that chronic neck pain also affects his ability to perform the activities required of such work. In the December 2010 VA mental disorders examination, the examiner wrote that the Veteran's neck pain was the "primary problem," and "negatively impacts his work because he can't concentrate and it gives him really bad headaches." The examiner stated that he would not be a "very reliable" employee given the variability in his neck pain. The examiner noted that some days the Veteran cannot function at all and spends his time in bed. While the Veteran's neck pain and migraines may affect his ability to sustain focus or concentration, and may require him to take time off work "some days" to stay home in bed, that in itself does not show that he could not perform the activities required of substantially gainful employment in jobs that do not require much concentration or focus. Again, the issue is not whether his disabilities cause occupational impairment, but whether they cause it to such an extent as to result in unemployability for TDIU purposes. The fact that he may need to take a day off work occasionally does not establish that he could not secure or follow substantially gainful employment. The Board also notes that VA examiner's findings in December 2010 do not necessarily reflect the level of severity of the Veteran's over the course of time. The fact that for a period of time he may have had increased neck pain or headaches does not show that, overall, he has been unable to obtain or maintain substantially gainful employment due to such pain. The January 2018 and January 2021 VA examinations show findings that the Veteran service-connected disabilities had little or no impact on his occupational functioning apart from his ability to lift, as found in the January 2018 examination. As discussed, the Board remanded this case to provide the Veteran an opportunity to attend new examinations to help it make an informed decision, but he has been unwilling to attend them. Accordingly, the Board finds that the December 2010 examiner's statement regarding the effects of pain on the Veteran's occupational functioning does not support a finding of unemployability. Indeed, the other medical evidence shows findings of a much higher level of occupational functioning than portrayed by the December 2010 examiner. Moreover, the ultimate determination as to whether the Veteran's service-connected disabilities cause unemployability is for the Board to make, not an examiner. See Geib, 733 F.3d at 1354. In that regard, the TDIU determination is a "purely adjudicative matter" reserved for the Board. See Delrio v. Wilkie, 32 Vet. App. 232, 242 (2019). The Board also finds that the combined impact of the Veteran's service-connected disabilities have not caused unemployability. The record does not show that his clavicle fracture residuals, headaches, upper extremity radiculopathy, or insomnia cause significant occupational impairment or that, in their aggregate effects, his service-connected disabilities cause occupational impairment in excess of their separate, individual impacts on occupational functioning. Indeed, the January 2011, January 2018 and January 2021 VA examinations all show findings that the right shoulder disability, upper extremity radiculopathy, and cervical fracture would have no impact on his ability to work. The January 2011 and January 2018 VA examinations show findings that the Veteran's headaches affect his occupational functioning in that he would have to take rests and intermittently have to lie down, but do not state or suggest that these would be frequent or that he would need to rest for long periods, or otherwise indicate that they would significantly interfere with occupational functioning. The Veteran's service-connected insomnia disorder is not shown to have effects on his physical ability to perform the exertional and nonexertional requirements of a substantially gainful occupation. In the December 2010 VA mental disorder examination, the examiner found that sleep was not "the major issue in terms of unemployability." In short, the record does not show that the combined impact of the Veteran's service-connected disabilities is more than the sum of its parts. Accordingly for the same reasons discussed above, the evidence does not show that the combined impact of the Veteran's service-connected disabilities would prevent him from securing or following substantially gainful employment in jobs that do not require lifting or much physical activity, especially jobs that do not require any significant physical exertion. As explained, his past employment in more physically active jobs does not in itself establish that it would be unreasonable for him to be able to obtain and maintain employment in jobs that do not require lifting or more physically active work. In short, the persuasive evidence shows that, with respect to the effects of the Veteran's service-connected disabilities alone, he does not lack the physical ability to perform the activities required of substantially gainful employment in occupations that are less physically demanding and do not require lifting, including jobs that he reasonably could be expected to obtain and maintain employment in when considering his work background, vocational attainment, education, skills, and training. Because service connection has also been established for primary insomnia disorder, the Board also considers whether the Veteran has the mental ability to perform the activities required of the occupation at issue. Ray, 31 Vet. App. at 72-73. Regarding the mental ability factor, relevant considerations include, but are not limited to, his limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. The December 2010 and February 2021 VA examinations do not show that the Veteran's insomnia disorder would cause limitations with respect to any of those factors. In the December 2010 VA mental disorder examination, the examiner found that sleep was not "the major issue in terms of unemployability." In the February 2021 VA examination, the examiner found that the Veteran's symptoms would cause an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but that he would generally function satisfactorily, with normal routine behavior, self-care, and conversation. Those findings weigh against unemployability due to the Veteran's insomnia disorder. With regard to concentration, as noted above, the December 2010 VA examiner found that the Veteran "can't concentrate" due to his pain and headaches, and that he would not be a "very reliable" employee due to the variability of his neck pain. The Board has already explained above why it finds that those conclusory statements do not establish that the Veteran would be unable to secure or follow a substantially gainful occupation, including when considering the effects of pain on his ability to sustain concentration. Accordingly, the Board finds that the noneconomic component is not satisfied. Therefore, the criteria for TDIU have not been met. See Ray, 31 Vet. App. at 72-73; 38 C.F.R. § 4.16(a). As the persuasive evidence is against the claim, the evidence is not in approximate balance or nearly equal; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 21 F.4th at 781-82; 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin 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.