Citation Nr: 1736562	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-06 641	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to total disability based on individual unemployability ("TDIU"), on an extraschedular basis, prior to April 6, 2015.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel

INTRODUCTION

The Veteran served as a member of the United States Army, with active duty service from March 1968 through November 1970. 

This appeal comes to the Board of Veterans' Appeals ("Board") from a July 2011 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Lincoln, Nebraska (hereinafter Agency of Original Jurisdiction ("AOJ")).  In pertinent part, the July 2011 rating decision denied the Veteran's request for an increased rating for his service-connected diabetes mellitus.  

In April 2013, the Veteran, and his wife, testified before the undersigned Veterans Law Judge at a Travel Board Hearing held at the RO.  During the hearing, the Veteran testified as to the worsening condition of his service-connected diabetes, and alleged he was unable to work due to the combined effects of these symptoms.  

Thereafter, the Veteran perfected his appeal to the Board. In a December 2014 decision, the Board found the Veteran's testimony and the medical evidence of record, had raised the issue of entitlement to a TDIU.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Additionally, the Board found that the totality of symptoms the Veteran experienced from his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment, beginning on and after April 6, 2015.

The Board found the Veteran did not meet the schedular criteria for entitlement to a TDIU for any period prior to April 6, 2015.  As such, the Board remanded this issue to the AOJ, and requested that the Veteran's claim be referred to the Director of Compensation Service for an initial determination as to whether the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment prior to April 6, 2015.  The Board additionally requested that the AOJ provide the Veteran with the appropriate forms to describe his work history prior to April 6, 2015.  A review of the record indicates that the requested development has been accomplished and that the Veteran's appeal has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS").  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1.  Prior to April 6, 2015, the Veteran was service-connected for diabetes mellitus, type II, with cataracts rated as 20 percent, bilateral lower extremity venous insufficiency and peripheral neuropathy, with 10 percent ratings for the left and right legs, tinnitus, rated as 10 percent, and additional non-compensable ratings for both bilateral hearing loss and erectile dysfunction. 

2.  Prior to April 6, 2015, the Veteran has a combined disability evaluation of 40 percent.

3.  The medical and lay evidence of record do not support a finding that the Veteran's service-connected disabilities, in particular his diabetes mellitus, prevented him from obtaining and maintaining substantially gainful employment prior to April 6, 2015.  

1
CONCLUSION OF LAW

The criteria for an award of a TDIU, on an extraschedular basis, are met prior to April 6, 2015.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.19 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).

As to the Veteran's claim for entitlement to an extraschedular TDIU, the AOJ notified the Veteran of the evidence needed to substantiate and complete this claim in correspondence dated February 2016.  This correspondence additionally informed the Veteran of the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The letter further informed the Veteran how disability ratings and effective dates are established.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file.  This includes records from the Omaha VA Medical Center ("VAMC"), Minneapolis VAMC, and the Nebraska-Western Iowa Health Care System.  The AOJ has additionally obtained records from the Social Security Administration ("SSA") and records of the Veteran's past employment.  To date, the Veteran has not contended that any medical or other relevant records have not been obtained or are otherwise outstanding.  The Veteran's electronic paperless claims files in Virtual VA and in VBMS have been reviewed.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ observed the Veteran's testimony regarding his diabetes raised the issue of entitlement to a TDIU and amended the Veteran's appeal to reflect the inclusion of this claim. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars.  The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.  Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Finally, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Entitlement to a Total Disability Rating Based on Individual Unemployability:

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155.  Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  Total disability may or may not be permanent.  Id.  Total ratings are authorized for any impairment or combination of impairments for which the Rating Schedule prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2).  

A TDIU may be assigned 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 their service-connected disabilities.  38 C.F.R. § 4.16(a).  If there is only one such disability, it must be rated as at least 60-percent disabling, and if there are two or more disabilities, at least one disability must be rated as at least 40-percent disabling and there must be sufficient additional disability to bring the combined rating to at least 70 percent.  Id.  

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id.

As outlined above, and in the Board's December 2015 remand, Veteran's combined service-connected conditions do not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation prior to April 6, 2015.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  As such, the Board referred the Veteran's claim, of entitlement to an extraschedular TDIU prior to April 6, 2015, to the Director of Compensation.  The Director completed a review and issued a decision on June 28, 2016. 

The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision.  Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration).  Recently, the Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate.  Kuppamala v. McDonald, 27 Vet. App. 447 (2015).
 
Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court of Appeals for Veterans Claims ("CAVC") 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..."

The ability to work sporadically or obtain marginal employment is not substantially gainful employment.  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable, is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  

But that said, as already alluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Furthermore, VA regulations provide that all Veterans who, in light of their individual circumstance, but without regard to age, are unable to secure and follow a substantially gainful occupation as a result of service-connected disability shall be rated totally  disabled, without regard to whether an average person would be rendered unemployable under the circumstances.  See VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 

Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating.  38 C.F.R. §§ 3.341(a), 4.16(a), 4.19.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).

That being the relevant laws and regulations applicable to the Veteran's claim, the Board finds that the weight of the evidence of record does not support a finding that the Veteran is entitled to an award of an extraschedular TDIU prior to April 6, 2015.  Specifically, the Board finds that when considering the symptoms of the Veteran's service connected disabilities, the weight of the medical evidence indicates the Veteran would be capable of performing sedentary work. 

Additionally, the Board observes that the Veteran continued to work through January 2009.  See SSA Determination; see also April 2016 Response from Employer.  The Veteran's ability to work, even on a part time basis, suggests the symptoms of his service-connected disabilities did not render him unable to maintain substantially gainful employment.  Therefore, the Board will not consider whether the Veteran is entitled to an award of a TDIU prior to January 2009.   

In statements to the Board, the Veteran alleges he was not able to obtain and maintain substantially gainful employment due to his service connected disabilities.  The Veteran stated his symptoms limited his ability to stand and walk for prolonged periods.  See April 2013 Hearing Transcript.  He additionally reported an inability to stay awake and concentrate throughout the day due to significant fatigue.  While the Board finds the Veteran competent to report these symptoms and limitations, the Board finds that the weight of medical evidence indicates that he was capable of obtaining and maintaining gainful sedentary employment prior to April 6, 2015.  

The Board recognizes that the Veteran was awarded disability benefits by SSA in June 2008, after they determined the Veteran's disabilities would prevent him from performing even sedentary employment.  While the Board has considered this award from SSA, the Board does not find it probative to the instant appeal.  Specifically, SSA granted entitlement to disability benefits after considering the totality of the Veteran's symptoms and impairments, including disabilities for which the Veteran has not been awarded service connection.  

Notably, the award of disability benefits from SSA focused on the Veteran's symptoms of fatigue, as a residual of his treatment for his nonservice-connected hepatitis.  SSA awarded the Veteran disability benefits after determining that his fatigue, as caused by his treatment for hepatitis, would require him to lie or sit down up to one to two hours per eight-hour workday.  The Veteran applied for entitlement to service connection for hepatitis, but was denied in a rating decision dated February 2009.  Therefore, the Board may not consider the symptoms and limitations the Veteran experiences as a result of his hepatitis.  

A review of the treatment records for his service connected disabilities shows that no physician or other medical provider has advised the Veteran that is unable to perform sedentary work; and no physician has advised the Veteran avoid strenuous activity due to is diabetes mellitus.  Rather, a review of the Veteran's medical records prior to April 6, 2015 indicate that he was actively encouraged by his physicians to engage in more physical activity.  This recommendation suggests that the Veteran's symptoms were not as limiting as he alleges. 

For example, following a VA examination in January 2009, the Veteran was not advised to limit his physical activity in any way.  This conclusion is notable because the examiner reported that the Veteran's diabetes had progressively worsened since the initial diagnosis.  Despite this finding, the examiner encouraged the Veteran to continue to engage in physical activities, and explicitly found there were no symptoms which would preclude him from engaging in strenuous activities. 

This January 2009 medical opinion was supported by both the Veteran's subjective symptoms and objective findings during a physical examination.  Notably, the Veteran reported that his symptoms imposed "mild" restrictions on his ability to engage in recreational activities, but indicated he was fully able to complete daily chores, shopping, traveling, and other activities.  Objective observations of the Veteran during this examination do not suggest he experienced numbness, pain, or a loss of sensation in either his left or right legs.  The Veteran was additionally observed to walk with a normal, steady gait.  As such, the Board finds no evidence from this January 2009 examination which would suggest the Veteran's diabetes rendered him unable to meeting the exertional demands of sedentary employment.  

A review of the Veteran's subsequent VA treatment records does not indicate or suggest the Veteran was ever treated for or complained of any exacerbated symptoms of diabetes, such as hypoglycemia or ketoacidosis.  The Veteran did seek treatment for symptoms of increased fatigue, which he attributed to an inability to sleep at night.  However, these symptoms were clinically associated with the Veteran's treatment for hepatitis, and not as a symptom of any service connected disability.  See e.g.  Norfolk CBOC Records, dated September 2009.  

During other appointments, the Veteran reported an intention to increase his daily activities.  For example, during a December 2010 nutrition counseling session, the Veteran declared an intention to begin working out at a local high school gym.  See Omaha VAMC Records.  The Veteran also noted he was taking a vacation with his wife in Mexico, where they would take a two week long cruise.  The Board finds these subjective statements to suggest that the Veteran himself did not find the symptoms of his diabetes to limit his ability to engage in activities such as lifting, walking, and standing.  Similarly, the Board finds the Veteran's ability to travel suggests he was capable of sitting for prolonged periods. 

Effective February 2011, the Veteran was granted an increased evaluation for his bilateral lower extremity venous insufficiency.  See July 2011 Rating Decision.  This increased evaluation was granted following VA examinations in April and May 2011, where the Veteran was reported to have symptoms of intermittent edema in his left and right legs.  However, additional clinical findings from this examination observed the Veteran maintained full sensation to vibration, pinprick, position sense, and light touch across his left and right legs.  There was no report of an alerted gait, and no observation that the Veteran appeared uncomfortable in a seated position.  

During the April 2011 examination for his diabetes mellitus, the examiner observed that the Veteran's symptoms had remained controlled and consistent since 2009.  In an April 2011 addendum opinion, the examiner observed the Veteran did not follow a restricted diet at the time, and that the Veteran subjectively reported functional limitations of increased urinary frequency. See Omaha VAMC Records.  The examiner further noted the Veteran continued to take oral medications for his diabetes, but reported no side effects as a result of these medications.  The Veteran additionally reported he did not restrict his activities on account of his diabetes or his bilateral lower extremity venous insufficiency. 

Furthermore, as part of a psychological VA examination conducted in April 2011, the Veteran reported he spends his days taking care of the house while his wife is at work.  This ability to perform household chores is suggestive of an ability to maintain gainful employment, as his symptoms did not interfere with his ability to complete daily tasks and chores.  The Veteran's own lay statements from this examination support the Board finding that his service-connected disabilities did not preclude him from working.  Notably, when providing his past employment history, the Veteran stated he was forced to stop working due to the symptoms and treatment of his hepatitis.  He did not report or allege any symptom of his diabetes or bilateral lower extremity venous insufficiency impacted his ability to work.  

Beginning in August 2011, the Veteran reported increasing symptoms of leg fatigue and pain, such that it made it difficult for him to exercise and walk for prolonged periods.  See Omaha VAMC Records.  A review of treatment records around this time indicate that the Veteran's blood sugars were elevated.  Rather that advise the Veteran to restrict his activities, his physicians encouraged him to exercise as tolerated and adjust his medications in order to lower his blood sugars.  Further diagnostic testing, including a December 2011 arterial vascular study found no evidence of worsened venous insufficiency or atherosclerotic obstructions.  During a follow up evaluation in January 2012, the Veteran reported he continued to experience fatigue in his legs.  However, he noted this fatigue varies depending on his activities, such as after he walks his dog for a mile.  The Veteran denied any persistent swelling at the time, and the examiner observed there were no signs of swelling or edema in the Veteran's bilateral lower extremities. 

The Board emphasizes that the Veteran subjectively reported being able to walk the distance of one mile as an indication that he would have been capable of performing sedentary employment prior to April 6, 2015.  Notably, the Veteran did not report any swelling following such activities, and the examiner did not observe any swelling or edema.  This suggests that the Veteran would have been capable of moving about on a regular basis, and was not required to rest and elevate his legs.  Furthermore, the Board notes that the symptoms of leg pain and fatigue were reported following an increase in the Veteran's exertional activities.  Thus, the Board finds this to suggest that sedentary activities, such as sitting, would not have resulted in leg pain, fatigue, or swelling, such that the Veteran would have been precluded from engaging in sedentary employment. 

Subsequent medical records continue to indicate that the Veteran was not significantly limited in his ability to perform and engage in exertional activities.  Notably, following a March 2012 examination, the Veteran was encouraged to begin a physician supervised regimen of physical therapy.  While the Veteran reported additional barriers to prolonged walking and standing, such as dizziness, he was advised that these symptoms would alleviate with better control of his blood sugar levels.  In any event, the Veteran did not report symptoms of dizziness or fatigue with sitting, and did not allege he was significantly restricted in his ability to perform daily chores as a result of his leg pain or dizziness. 

The Veteran continued to seek VA treatment for complaints of leg pain and fatigue.  For example, in November 2014, the Veteran reported he leg muscles become stiff after prolonged walking and he experiences increased symptoms of tingling in his feet.  See Omaha VAMC Records.  However, the Board again emphasizes that these complaints were associated with the Veteran ability to walk and stand for prolonged periods.  At no time during the period on appeal did the Veteran allege an inability to sit for prolonged periods.  At no time was he observed appearing in discomfort or pain while sitting.  Rather, he was consistently observed to walk with abnormal gait and was able to transition between seated and standing positions fluidly.  

Taken together, the Veteran's VA treatment records indicate that his symptoms of diabetes and bilateral lower extremity venous insufficiency, did not preclude the Veteran from performing daily tasks or engaging in exertional activities.  At most, the Veteran's symptoms would have resulted in a limited ability to walk and stand for prolonged periods, due to pain and fatigue in his bilateral legs.  However, there is no suggestion or report of pain or swelling in the Veteran's bilateral lower extremities such that he would have been incapable of performing sedentary occupations. 

As for the Veteran's remaining service connected disabilities, he has not alleged any functional limitations which would preclude him from engaging in sedentary work.  Notably, the Veteran reported he occasionally has difficulty hearing but did not suggest that this was significantly limiting.  Similarly, the Veteran has not alleged an inability to see due to his cataracts and he has not described any functional limitations.  He continued to drive and remains capable of performing household chores and traveling to and from various destinations. 

As for the Veteran's education and work history, the Board acknowledges that the Veteran has a limited education.  He completed 10th grade but did not graduate high school or receive a diploma.  Following his separation from military service, the Veteran did not return to school, but instead obtained certification from a truck driving program in August 1973.  The Veteran's employment history has required physical strength and tolerance for walking and standing, as he worked past employments such as housekeeping and meat processing. 

While the Board concedes the Veteran would be limited in performing jobs which required prolonged walking and standing, there is no evidence which indicated he would be incapable of sedentary employment.  As discussed above, the Veteran has never been advised or told to restrict his exertional activities.  To the contrary, the Veteran has been consistently encouraged to engage in physical activities, such as walking and strength training.  While the Veteran has reported subjective symptoms of leg fatigue prior to April 6, 2015, there is no clinical or objective evidence which indicates these symptoms would preclude the Veteran from performing sedentary work, or work that does not require prolonged walking and standing. 

In conclusion, the Board finds the totality of the evidentiary record does not support the award of entitlement to an extraschedular TDIU prior to April 6, 2015.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  38 U.S.C.A. § 5107; 3 8 C.F.R. § 3.102;  See also Gilbert, 1 Vet. App. at 49.


ORDER

Entitlement to an extraschedular TDIU prior to April 6, 2015 is denied. 



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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