Entitlement to a total disability rating based on individual unemployability due to service-connected lumbosacral spine disabilities (TDIU) is denied.
Prior to July 31, 2013, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.
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Citation Nr: 19156572 Decision Date: 07/22/19 Archive Date: 07/22/19 DOCKET NO. 10-44 480 DATE: July 22, 2019 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected lumbosacral spine disabilities (TDIU) is denied. FINDING OF FACT Throughout the appeal period, the Veteran has either been employed or in receipt of a combined 100 percent rating; there is no evidence showing that he has been rendered unable to secure or follow a substantially gainful occupation as result of his service-connected lumbosacral strain with degenerative changes alone, referral for extra-schedular consideration is not warranted. CONCLUSION OF LAW The criteria for TDIU due to service-connected lumbosacral spine disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1975 to May 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Oakland, California which assigned an increased 40 percent rating for the Veteran’s service-connected lumbosacral strain with degenerative changes from November 24, 2008, the date of receipt of his claim for an increased rating. The Veteran’s claim of entitlement to TDIU is part and parcel of his claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2016, the case was remanded to provide the Veteran with a hearing before a Veterans Law Judge. In March 2017, the Veteran testified before the undersigned at a Video Conference Hearing; a copy of the transcript is associated with the record. The case was remanded for additional development in August 2017. In June 2018, the Board denied a rating in excess of 40 percent for lumbosacral strain with degenerative changes, to include TDIU, and a rating in excess of 10 percent prior to June 28, 2012 and 20 percent from that date for radiculopathy of the right lower extremity and granted a 10 percent rating for radiculopathy of the left lower extremity from the earlier effective date of April 10, 2012. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In a December 2018 Order, the Court vacated the June 2018 Board decision and remanded the matter of entitlement to a TDIU rating for readjudication consistent with the instructions in a Joint Motion for Partial Remand (JMPR). The Order dismissed the appeal as to the remaining issues. TDIU This appeal arises from the Veteran’s November 24, 2008 claim for an increased rating of his service-connected low back disability. He contends that his low back disability renders him unemployable. The Veteran’s service-connected disabilities are rated as a combined 100 percent disabling from June 28, 2012. He was employed full-time until July 31, 2013, when he retired. Although the Veteran has been evaluated at a combined 100 percent from June 28, 2012, the matter of TDIU is not moot because a TDIU based on a single service-connected disability alone may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent combined schedular evaluation is in effect. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010) (A TDIU based on a single service-connected disability alone may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent schedular evaluation is in effect.) Notably, however, unlike 38 C.F.R. § 4.16(a), when determining whether the Veteran has independently ratable and distinct disabilities for purposes of SMC, the question of whether such disabilities arose from a common etiology is not relevant. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). For these reasons, the matter of TDIU is limited to the question of whether the Veteran’s lumbosacral strain with degenerative changes alone precludes employment. His lumbosacral strain with degenerative changes is rated as 40 percent disabling for the entire appeal period; the additional neurological ratings reveal that the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) were not met until June 28, 2012, as the Veteran’s lumbar spine disability in combination is rated as 60 percent from that date. Even when the criteria under 38 C.F.R. § 4.16(a) were not met (prior to June 28, 2012), entitlement to a TDIU on an extraschedular basis may be referred for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected lumbar spine disability. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment does not include marginal employment, which is generally deemed to exist when a veteran’s earned annual 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. Marginal employment may also be held to exist on facts found basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (“[T]he only logical reading of the regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal-i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.”). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an 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. More recently, the Court clarified that the establishment of a TDIU has both an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component 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. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran’s disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring) (“Where a claimant’s employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.”). The Veteran claims entitlement to TDIU based on sheltered or protected employment. An argument that an employer’s provision of accommodations to a disabled employee necessarily brings that employment relationship within the definition of “employment in a protected environment” for the purpose of 38 C.F.R. § 4.16(a) is the overly broad definition offered by the claimant in Cantrell and ultimately rejected by the Court. See Cantrell, 28 Vet. App. at 392. In other words, the mere provision of accommodations is not dispositive, rather, the Board must look to the reasons accommodations were provided in a specific case. As discussed below, the evidence in this case clearly reflects that the Veteran was retained despite the need for accommodations because of his value to his employer rather than for altruistic reasons. The Veteran claims that he was able to remain employed because of “accommodations” made by his employer (hiring of an assistant to perform the physical aspects of his job, flexible work schedule, being allowed to rest/sleep at work and no disciplinary action during unproductive periods of the work day) or “sheltered” employment. It is the Veteran’s contention that because his employer “understands” and has made accommodations for his back disability, it should be considered sheltered employment (without the “sheltered employment status” he would not be working). See, e.g., January 2009 employer statement, noting the Veteran had used 193.5 hours of sick leave from 2007 to 2008 due to his back problems and had been provided with an additional staff during his shift to assist him with lifting and positioning of patients; April 2013 peripheral nerves examination report noting the Veteran “has been able to work as a senior MRI technician and instructor at VASF, but with considerable latitude in restriction on any heavy lifting or persistent weight bearing activity;” June 2013 medical statement noting that “[w]ork modification has been recommended to ensure that [the Veteran] is able to avoid repetitive heavy lifting, repetitive loading, and prolonged sitting that exacerbates symptoms;” March 2017 Board hearing transcript and May 2017 employer statement, noting the Veteran’s work shift was changed in 2004 until his retirement in 2013 from 8 hour days 5 days per week to 10 hour days 4 days per week to prevent further aggravation of his service-connected disability by lessening his long commute times, the work shift hours was eliminated after the Veteran’s retirement. During his March 2017 Board hearing, the Veteran has also testified that it was his cardiologist who recommended accommodations at work to reduce stress on his heart (a non-service-connected disability). The record also includes a February 2009 VA spine examination report notes the Veteran was “in a supervisors position, which requires a minimum of physical exertion.” An April 2017 statement from C. N. Bash, M.D., includes the opinion that “due to IVDS of his lumbar spine and/or his MDD, singly or combined, [the Veteran] would not have been able to secure or follow a substantial gainful employment requiring exertional and or non-exertional activity if not for the permanent and extraordinary accommodations provided to him by his employer.” (emphasis in original). Because of the equivocal nature of this opinion and the absence of an explanation of rationale, it is of little probative value. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In his September 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Application) the Veteran claimed his service-connected lumbar spine IVDS (intervertebral disc syndrome), MDDS (major depressive disorder) and bilateral lower extremity radiculopathy prevented him from securing or following any substantially gainful occupation (i.e., his inability to secure and follow substantially gainful employment was not the result of his service-connected back disability, alone). He completed four years of college as well as graduate studies in health care administration. The Veteran reported working as a magnetic resonance imaging (MRI) technician at the San Francisco VA medical facility throughout the appeal period (since 1983) until his retirement in July 2013 and his highest gross earnings were over $7,000 per month ($86,000 per year) in 2013. In a September 2017 Personal Narrative (based on 30 years employment at the VA, 26 years as MRI Lead Tech), the Veteran recalled that, because the number of MRI techs in the Bay Area was very small, he had received numerous attractive offers to leave the VA. However, aware of this, the radiology department promoted him by creating the first Lead Tech position in the department (the Veteran recalled that he stayed at VA because job satisfaction and feeling of being needed and important prevailed over attractive financial offers.) He recalled undergoing coronary heart by-pass surgery in 2001 and stated that he believed the disease was caused by stress induced by chronic (back) pain and family history. The September 2017 Personal Narrative notes that the Veteran’s initial request for shift change was met with resistance including because he was told his “absence would compromise the operation and mission of the Radiology/MRI service since [he] was the only tech that could perform such complex or difficult cases” (other reasons were the need to hire a per-diem tech to help and cover the Veteran’s shift, granting request might cause a union or discrimination lawsuit and might cause employee morale or union issues). The Veteran requested reconsideration of his shift change request on the basis of his unblemished work record since 1983 (21 years of outstanding performance), his loyalty to VA despite numerous attractive financial offers and “as a sign of goodwill” to him as a disabled veteran. Basically, he asked for reconsideration of his request “as an outstanding loyal employee who contributed so much for the department prior to the increased severity of his lumbar pain” and as a disabled veteran. His shift change request was granted and the administrator told him he had “paid” his dues. The September 2017 Personal Narrative further notes that, with increasing severity of his back disability, discussions with the Veteran’s employer concluded in the decision to hire another staff solely to do the physical (lifting) requirements of his job; thereby, resulting in the Veteran’s decision not to quit. Nevertheless, he stated that his job was “complicated and challenging” after implementation of the shift change and removing him from performing the physical aspects of his job because of his mood disorder diagnosed in 2008, chronic lumbar pain, right leg radiculopathy and the effects of medications which adversely affected his behavior and attitude at work (the Veteran identified mental health related symptoms, such as changed attitude and demeanor, reduced tolerance and patience, being more argumentative, avoidance, diminished concentration, lack of attention and pain from prolonged sitting). In addition, because his “dedication and professionalism was unquestionable,” the Veteran was able to make administrators understand why he slept in his car and they recommended he use some of the available unused rooms in radiology to sleep (to avoid getting in trouble with hospital police for sleeping in the garage). He was told not to worry and to take care of himself. In the September 2017 Personal Narrative, the Veteran stated that, as the hired additional staff took over more of the Veteran’s job, he felt his presence at work became more insignificant and less noticed and management let him come to work late and leave early without charging him sick or annual leave. The Veteran recalled he became unproductive with no disciplinary action and was granted unconditional and unlimited “privileges.” He stated he could have worked forever because he was under no pressure to retire or file for medical disability; the “treatment was one of just true compassion” extended to him as a fellow co-worker who was productive for 25 years and only became unproductive and unemployable during the last 5 years of his 30 years of medical service.” The Veteran concluded that he would not have qualified or been able to work anywhere else if not for the protected environment extended to him because of his physical and mental disabilities. He stated that, although he still needed the money, he retired voluntarily because his “continued employment became disruptive and detrimental to the interest and effective operation of the” radiology department (the “extraordinary ‘protection’ from [his] job did not mean permission for [him] to abuse the ‘goodness’ of [his] employer”), he had become unproductive (the position should be vacated for a deserving young employee) and as a sign of “gratitude” for “5 years of permanent, unconditional and extraordinary ‘protection’ extended to keep [him] employed.” This Personal Narrative does not reflect the contention that his service connected low back disability, alone, prevented the Veteran from securing and following gainful employment outside the protected/sheltered environment. On October 2017 VA back examination, the examiner noted that, while working as an MRI technician, the Veteran had “required modifications to avoid heavy repetitive lifting and prolonged sitting, lifting or bending.” In a June 2019 statement, the Veteran clarified that his cardiologist recommended a change in his work shift to avoid stress to his heart from pain due to prolonged sitting because of his service-connected lumbar spine disability during the long commute to and from work. He also referred to treatment records which noted “flare” of low back pain everyday with driving, driving for 1 hour was “very painful” and back pain with prolonged sitting, standing or walking. Further, the Veteran stated that he qualified for TDIU “because of his physical and or mental service connected disability/ies.” Significantly, he did not contend that his service connected low back disability, alone, prevented him from securing and following gainful employment outside the protected/sheltered environment. After careful review of the extensive record, (including the October 2017 VA examination report noting the Veteran’s back disability impacted his ability to work because modifications to avoid heavy repetitive lifting and prolonged sitting, lifting or bending were required and the letters from his employer in January 2009, noting hours of sick leave used and that he had been provided with an additional staff to assist with lifting and positioning patients, and May 2017, noting his changed work shift to prevent further aggravation of his service-connected disability by lessening his long commute times; which were the basis for November 2018 Court remand) the Board does not find that a TDIU is warranted for any period contemplated by this appeal. Although the Veteran was employed with accommodations prior to his July 2013 retirement, the Board finds that such employment does not constitute marginal employment nor employment in a protected environment. The Board acknowledges that the Secretary, as of this decision, has not defined “protected environment.” See MERRIAM-WEBSTER, accessed at https://www.merriam-webster.com/dictionary/protect (defining “protect” primary as “to cover or shield from exposure, injury, damage, or destruction”); see also MERRIAM-WEBSTER, accessed at https://www.merriam-webster.com/dictionary/environment (defining “environment” primarily as “the circumstances, objects, or conditions by which one is surrounded”). Therefore, it is at the Board’s discretion on a case-by-case basis based on the information and evidence of record. Here, the evidence shows that during the relevant period on appeal, the Veteran was either employed in a supervisory position as Lead MRI Technician at the San Francisco VA medical facility (a facility required by law to provide reasonable accommodations to qualified employees with disability), or had retired. Prior to his July 2013 retirement, the Veteran worked for the same employer since 1983 (30 years) and reported his highest gross earnings as $86,000 in 2013. It is acknowledged that the Veteran was afforded accommodations during this time, including a change in his work shift and an additional staff to assist with the physical demands of his job as reported by his employer and being permitted to sleep/take long breaks as described by the Veteran in his September 2017 Personal Narrative. However, although the Veteran and Dr. Bash have characterized these accommodations as “extraordinary,” there is no indication in the record that these accommodations were beyond those that would be required by law. Rather, the Veteran’s educational attainment and lengthy record of full-time employment demonstrate that he can hold a full-time job and earn income well above the poverty level for an individual despite his disability. The mere fact that the Veteran had been afforded accommodations for his disability does not mean he is engaged in marginal employment or employment in a protected environment. In this regard, it is noted that employment in a protected workshop and employment in a family business share a therapeutic or charitable purpose. While family businesses and sheltered workshops often involve employment accommodations, the presence of such accommodations is not the only similarity between the two and is not even a necessary characteristic for employment in a family business. See Cantrell, 28 Vet. App. at 390. In applying this principal to the Veteran’s claim, the Board finds that his employment as Lead MRI Technician at a VA facility is not “employment in a protected environment” because there is no evidence to show the purpose of this position is to hire people with disabilities to train or rehabilitate them. Rather, as described by the Veteran, it is a highly skilled position and he was in a supervisory role. The record shows that, while accommodations were made by the Veteran’s employer, they were made to retain a highly skilled and valued employee with many years of experience. Specifically, in his Personal Narrative, the Veteran stated that his request for shift change was initially met with resistance including because his “absence would compromise the operation and mission of the Radiology/MRI service since [he] was the only tech that could perform such complex or difficult cases” and, when it was granted after he requested reconsideration on the basis of his 21 years of loyal unblemished employment, he was told he had “paid” his dues (i.e., earned it.) In addition, another staff was hired to perform the physical requirements of his job so as to keep him from quitting. These records show the Veteran was not employed for a charitable or therapeutic purpose; rather, he was a valued employee based on the depth (he was a senior MRI technician and instructor) and breadth (he had been working in the position for 21 years when he initially requested accommodation) of his experience. Although the Veteran has reported being permitted to sleep in unused radiology rooms, eventually becoming unproductive with no disciplinary action and being granted unconditional and unlimited “privileges.” Such assertions are not supported by the record, including statements from his employer. Nevertheless, to the extent that he was allowed to sleep and work less than his full work day without disciplinary action, the Board finds his employment was not marginal. Finding otherwise would conflict with the Court’s decision in Faust: “[T]he Court holds that where, as in this case, the veteran became employed, as shown by clear and convincing evidence, at a substantially gainful occupation- i.e., 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- such employment constitutes, as a matter of law, a substantially gainful occupation.... .” See Faust v. West, 13 Vet. App. 342, 350 (2000). As explained above, the matter of TDIU on appeal in this case is limited to the question of whether the Veteran’s lumbosacral strain with degenerative changes alone precludes employment. Although in his June 2019 statement, the Veteran clarified that his cardiologist had recommended a change in his work shift to avoid stress due to pain because of his lumbar spine disability (thus, TDIU is warranted based on his lumbar spine disability, alone); in this same statement, the Veteran also asserted that he was entitled to TDIU “because of his physical and or mental service connected disability/ies.” Also as described above, earlier statements and testimony from the Veteran attribute his retirement to a combination of multiple physical and psychiatric disabilities, both service-connected and nonservice-connected. As such, the assertion that TDIU is warranted based on the Veteran’s low back disability alone is inconsistent and lacks credibility. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The record shows the Veteran is treated for atherosclerotic heart disease and has undergone coronary artery bypass grafting (the Veteran is not service-connected for a heart disability). In addition, Dr. Bash has attributed the Veteran’s unemployability, at least in part, to the Veteran’s psychiatric disability. Given this evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected lumbosacral strain with degenerative changes alone prevents him from securing and maintaining an occupation in which he has work experience and the educational background to perform. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, awarding a TDIU would not serve its intended purpose as the Veteran was able to maintain gainful full-time employment for 30 years prior to his July 2013 retirement, despite the severity of his service-connected disabilities, including his lumbosacral strain with degenerative changes and his related neurological issues. As discussed in Cantrell, the Veteran’s disabilities do not result in lost income and legally required accommodations permitted him to maintain gainful employment. Therefore, entitlement to TDIU shall be denied because it would not serve the purpose intended by Congress. See 38 U.S.C. § 1155 (“The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.”). For these reasons, the Board finds that the Veteran is not rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected lumbosacral strain with degenerative changes (and related lower extremity neurological disability) alone. Referral for consideration of entitlement to a TDIU on an extraschedular basis is not warranted for that part of the appeal when the lumbosacral disability did not meet the schedular requirements. 38 C.F.R. § 4.16(b). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Hughes, 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.