Citation Nr: 25007516 Decision Date: 06/04/25 Archive Date: 06/04/25 DOCKET NO. 18-34 755 DATE: June 4, 2025 ORDER Entitlement to a total disability rating based in individual unemployability as due to service-connected disabilities (TDIU) prior to July 15, 2016, is denied. FINDING OF FACT Prior to July 15, 2016, the evidence of record does not reflect that the Veteran's service-connected disabilities together precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to July 16, 2016, to include on an extraschedular basis, have not been met. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1969 to January 1971. The issue of entitlement to an earlier effective date for the grant of TDIU was previously addressed by the Board in a February 2025, wherein it was determined that entitlement to the benefit prior to December 30, 2020, was raised by the record despite the fact that entitlement to TDIU was granted in a March 2021 rating decision effective from that date. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Board awarded an earlier effective date of July 15, 2016, for the grant of TDIU, it was determined that prior to this date, the Veteran did not meet the schedular requirements for a grant of TDIU pursuant to 38 C.F.R. § 4.16 (a). Therefore, the Board remanded to the Agency of Original Jurisdiction (AOJ) the question of entitlement to TDIU prior to July 15, 2016, on an extraschedular basis. Specifically, the AOJ was instructed to refer the matter to the Director of Compensation and Pension Service (Director) for issuance of an advisory opinion regarding whether TDIU is warranted on an extraschedular basis. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Upon receipt of the claim, the AOJ did indeed refer the matter to the Director, whose office issued an April 2025 advisory opinion wherein it was determined that an extraschedular evaluation is not warranted. The AOJ then promulgated an April 2025 supplemental statement of the case denying entitlement to TDIU prior to July 15, 2016. Thereafter, the matter was returned to the Board for its adjudication. Entitlement to TDIU prior to July 15, 2016 At issue is whether the Veteran is entitled to TDIU prior to July 15, 2016 on account of his service-connected disabilities. As noted in the Board's February 2025 decision, the TDIU claim was raised on the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as ancillary to a separate claim seeking entitlement to an increased rating for a low back condition. With this in mind, the Board reiterates that the period on evaluation extends back to the period that was under evaluation for the separate increased rating claim, that is, from November 26, 2012, the date of the original claim seeking entitlement to service connection for the low back condition. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16 (a), 4.19. TDIU 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). Effective August 23, 2012, the Veteran is in receipt of a 30 percent rating for post-traumatic stress disorder (PTSD), as well as a 10 percent rating for a pilonidal cyst, for a combined rating of 40 percent. Effective November 26, 2012, the Veteran was awarded a 10 percent rating for the low back condition, which did not increase the overall combined rating. Then, effective June 7, 2013, the Veteran was awarded a 10 percent rating for tinnitus and a separate noncompensable rating for bilateral hearing loss, which raised the overall combined rating for all service connected disabilities in effect prior to July 15, 2016, to 50 percent. Therefore, the Veteran does not qualify for schedular consideration of TDIU under 38 C.F.R. § 4.16(a) prior to July 15, 2016. He may still be entitled to referral for consideration of an extraschedular grant of TDIU, however, if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As noted, the claims file has already been referred to the Director, whose office issued an April 2025 advisory opinion recommending against granting TDIU on an extraschedular level. In support thereof, the Director highlighted the fact that the Veteran last worked in 2005 in a sales management position, and found that there was no indication from the record that his service-connected disabilities would preclude him from maintaining sufficient employment, even if he is unable to perform the duties required in the specific field that he last worked in. Additionally, the Director referred to a separate April 2025 memorandum issued by the Compensation Service office which recounts the evidence of record for the period prior to July 15, 2016. According to that memorandum, the Veteran claimed in his October 2018 TDIU application that he is precluded from working as due to his service connected PTSD and low back condition. The memorandum also proceeds to detail the fact that none of the VA examiners who evaluated the severity of the Veteran's PTSD and low back condition found that either condition contributed to a significant degree of occupational impairment, and so did not raised the suggestion that these disabilities together would preclude the Veteran from working. In evaluating TDIU claims, the Board notes that the United States Court of Appeals for Veterans Claims (Court) promulgated additional guidance to assist in the evaluation of claims for TDIU in Ray v. Wilkie, 31 Vet. App. 58, 71 (2019). The Court stated that: "[W]e interpret the phrase "unable to secure and follow a substantially gainful occupation" in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. 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. As for the noneconomic component, the Secretary himself states that 'determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,' and 'the ultimate inquiry is instead on the individual claimant's ability to secure or follow that type of employment.'" Factors for consideration in evaluating the noneconomic component are: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with possibly relevant factors including, but not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. With regard to the economic component of the Ray analysis, on the October 2018 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked in sales management from April 1996 to April 2005, earning at $11,600 per month. He also noted that he earned nothing in the past 12 months, and that the most he earned in a year in his position was $140,000 in 2004. According to the Veteran, he is precluded from maintaining employment due to the symptoms of his low back condition and his PTSD. In a December 2018 correspondence, a representative from the Veteran's former employer confirmed that the Veteran had worked at the company from November 1994 to April 2004, and that he was employed as a sales professional. According to the representative, the Veteran ceased working with the company because he voluntarily retired. The representative did not note that the Veteran was provided any concessions for reason of his disabilities while he was employed with the company. The complete lack of earned income clearly qualifies for the economic component of the Ray analysis for the entire period on appeal, that is, from November 16, 2012, to July 15, 2016. The question that still remains, however, is whether the Veteran's service-connected disabilities during the period prior to July 15, 2016, rendered him unable to secure and follow substantially gainful employment. Regarding the noneconomic component defined in Ray, the Board notes that on the October 2018 TDIU application the Veteran detailed that he completed four years of undergraduate education and that he also obtained a realtor's license following his ceasing employment in 2004 that has since lapsed. The Veteran has been afforded three VA examinations during the period prior to July 15, 2016, to evaluate the severity of the PTSD. During an October 2012 examination, he reported that he was laid off in 2004 when the company he worked for was purchased by another company; according to him, he has not been able to find work since this occurred and has retired. When interviewed, he reported feeling some anxiety but denied any history of hopelessness or depression, and further denied any suicidal or homicidal ideation. After confirming a diagnosis of PTSD, the examiner found that the condition contributed to anxiety and chronic sleep impairment, but ultimately his symptoms did not result in any interference with occupational functioning, and did not require the use of continuous medication. During a May 2014 VA PTSD examination, the Veteran reported that he only has two friends that he sees occasionally and otherwise is very close with his family. According to the Veteran, he stopped worked because he didn't want to "deal with people." See May 5, 2014 Post-Traumatic Stress Disorder Disability Benefits Questionnaire. When queried, he specifically denied any suicidal or homicidal ideation as well as any hallucinations. After confirming a diagnosis of PTSD, the examiner noted the following symptoms: depression, anxiety, chronic panic attacks, chronic sleep impairment, and disturbances of motivation and mood. In summation, the examiner found that the PTSD contributed to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. The severity of the PTSD was also evaluated in a December 2014 examination, wherein the Veteran reported that he still maintains connections with a few friends from work and also meets occasionally with a veterans group. Once again, he denied any suicidal or homicidal ideation as well as any hallucinations when queried. After confirming a diagnosis of PTSD, the examiner noted symptoms of depression, anxiety, and chronic sleep impairment. In summation, the examiner found that the PTSD contributed to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. During the appeal period, the severity of the low back condition was first evaluated in a November 2013 VA back examination, wherein he reported experiencing chronic aching low back pain of a severity of seven out of ten. When queried, he endorsed experiencing flare-ups of increased back pain relieved with heat and over-the-counter pain medication. Range of motion testing revealed forward flexion reduced to 70 degrees, extension reduced to 20 degrees, bilateral lateral flexion reduced to 20 degrees, with painful motion beginning at 15 degrees, and bilateral lateral rotation reduced to 25 degrees. There was no additional loss of range of motion following repetitive use testing; moreover, the examiner found no evidence of abnormalities in muscle strength, reflex, or sensory testing. In summation, after setting forth a diagnosis of low back strain, the examiner found that the condition contributed to impairment of occupational functioning as the Veteran experienced pain with prolonged sitting and following repetitive flexion. The severity of the low back condition was next evaluated in a June 2014 VA back examination, during which the Veteran reported experiencing flare-ups of increased pain and stiffness relieved with shifting his sitting position. Range of motion testing revealed forward flexion reduced to 70 degrees, extension reduced to 20 degrees, bilateral lateral flexion reduced to 20 degrees, and bilateral lateral rotation reduced to 25 degrees. The examiner was unable to assess if there was any additional loss of range of motion following repetitive use because the Veteran was unwilling to engage in such testing. Additionally, the examiner neglected to estimate the degree of additional loss of range of motion during a flare-up, noting that the Veteran was "unable to replicate the estimated limitation at the time of examination"; however, the examiner did note that the Veteran would be expected to exhibit less movement than normal. See June 16, 2014 Back Conditions Disability Benefits Questionnaire. Further testing on the June 2014 examination revealed no abnormalities in muscle strength or sensation, but the examiner did note that the Veteran exhibited paraspinal tenderness upon palpation and had reduced reflexes in the knees as well as no reflexes whatsoever in the ankles. Moreover, straight leg raising testing was positive bilaterally, although the examiner declined to endorse a diagnosis of radiculopathy. In conclusion, the examiner found that the low back condition contributed to impairment of occupational functioning, as the Veteran was limited to lifting up to 20 pounds only and can only sit for one hour at a time. The severity of the bilateral hearing loss and tinnitus was evaluated in a November 2013 VA examination, during which the Veteran was diagnosed formally with both conditions after an in-person evaluation. When queried, he detailed that he has difficulty hearing conversation while in groups or in large rooms. He also related that the tinnitus symptoms irritate him. A thorough review of available post-service medical records shows that the Veteran reported to his private medical provider in March 2013 that he has a long history of lower back pain that he characterized as a residual of surgeries he underwent in the past for treatment of pilonidal cysts. According to the Veteran, he experiences significant discomfort while sitting. As for PTSD, he did not seek treatment for mental health symptomatology through the VA until August 2013, at which time he began undergoing regular therapy at his local VA medical center. He reported at that time that he has a good relationship with his wife and friends but does experience sleep disturbances that he attributes to PTSD; he also denied any suicidal or homicidal ideation. During this same evaluation the Veteran reported experiencing some low back pain; however, testing at that time did not reveal any loss of range of motion. Thereafter, an August 2014 outpatient record shows that the Veteran reiterated to his private treatment provider that he has experienced low back pain for several years; additionally, he asserted that the low back symptoms interfere with his activities of daily living. It is also noted that the Veteran has been followed for hearing loss since 2013 and has a prescribed hearing aid. Considered in light of the Director's opinion recommending that TDIU not be granted on an extraschedular basis, which is not binding, the Board finds that the evidence is persuasively against a determination that the Veteran's service connected PTSD, low back condition, pilonidal cysts, bilateral hearing loss, and tinnitus, together precluded him from securing and following substantially gainful employment prior to July 15, 2016. While the question of whether a Veteran is capable of substantially gainful employment is ultimately one for the adjudicator (see Geib v. Shinseki,733 F.3d 1350, 1354 (Fed. Cir. 2013)), the Board does highlight that each of the VA examiners who evaluated the severity of the service connected disabilities at issue here did not find that those conditions individually would preclude the Veteran from securing and following substantially gainful employment. Specifically, although the November 2013 and June 2014 VA examiners who evaluated the severity of the low back condition acknowledged his reports of experiencing chronic aching low back pain that forces him to shift regularly while sitting, nevertheless, both of them did not find that this would fully preclude him from functioning in a work setting. Similarly, the October 2012, May 2014, and December 2014 examiners who evaluated the severity of the PTSD did not find that the condition would interfere with the Veteran's ability to function in a work setting, other than to acknowledge that the Veteran may experience some difficulties interacting with fellow coworkers. These determinations are corroborated by the Veteran's consistent reports of having well-managed mental health symptoms on repeated therapy sessions at his local VA medical center as well as the relative paucity of complaints of back pain during the period prior to July 15, 2016. Thus, the Board considers the various VA examinations pertaining to this period to be highly probative. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has considered the opinions of two private medical providers, a D.D., who submitted an August 2020 correspondence, as well as a R.B., who submitted a November 2020 correspondence. As noted in the prior February 2025 Board decision, both individuals indicated that the Veteran's various service-connected disabilities preclude him from securing and following substantially gainful employment. Furthermore, as acknowledged in the prior Board decision, there is no indication that either individual intended to restrict their conclusion so that it would only apply from the date of the Veteran's supplemental claim seeking entitlement to TDIU. That being said, Dr. R.B. relies significantly on the impairment stemming from the Veteran's service connected heart condition, which is not a disability at issue here because the grant of service connection for the condition is not effective until after July 15, 2016. Moreover, Dr. D.D.'s opinion does not specify what service connected disabilities contribute to the Veteran's unemployability or in what capacity these disabilities result in impairment of occupational functioning. With these shortcomings in mind, the Board finds that neither opinion holds much probative weight, as it is unclear to what degree either examiner would find that those disabilities that were service connected during the time period prior to July 15, 2016 actually contribute to impairment of occupational functioning. The Board notes that although the Veteran was not working for the period from August 23, 2012, to July 15, 2016, the mere fact that a veteran is unemployed or underemployed, or has difficulty obtaining employment, is not enough to warrant a grant of TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Indeed, the Court in Ray reemphasized that the question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether such veteran can find employment. Furthermore, although the Veteran may contend that he retired because he was unable to find work as a result of his service connected disability, he does not possess training or credentials in medical or vocational matters, and, thus, cannot competently opine on the question of whether such symptoms actually rendered him unemployable during the period in question. Jandreau v. Nicholson,491 F.3d 1372 (Fed. Cir. 2007). To that end, the Board highlights that although the Veteran was documented as experiencing significant physical challenges due to his low back condition requiring him to regular shift while seated and restricting his ability to perform more strenuous tasks, nevertheless, it is clear from the record that the Veteran's past employment experience is in a sedentary role that does not necessitate such physical activity and which would not be significantly undermined by having to shift positions while seated. Moreover, the Veteran has never submitted evidence from a medical professional which would suggest that, prior to July 15, 2016, he was unable to perform the mental tasks necessary of such sedentary employment due to the impact of his PTSD, bilateral hearing loss, and tinnitus. The Board of course accepts that the low back condition resulted in some difficulty performing physical activity during the period prior to September 8, 2014; similarly, the Board accepts that the PTSD, bilateral hearing loss, and tinnitus resulted in some difficulty performing mental tasks during the period prior to July 15, 2016. However, there is no indication that these disabilities rendered the Veteran incapable of performing the physical and mental acts required to be substantially gainfully employed. Therefore, as the evidence persuasively weighs against the claim, the Board concurs with the recommendation of the Director and finds that the Veteran's service-connected PTSD, low back condition, bilateral hearing loss, pilonidal cysts, and tinnitus, did not preclude him from securing and following substantially gainful employment prior to July 15, 2016. The benefit-of-the-doubt doctrine does not apply, and the Veteran's claim for entitlement to TDIU prior to July 15, 2016, on an extraschedular basis must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.