Citation Nr: 1625380 Decision Date: 06/23/16 Archive Date: 07/11/16 DOCKET NO. 07-08 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis prior to October 5, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 1971 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Jurisdiction over the Veteran's claims file was subsequently transferred to the VA RO in Muskogee, Oklahoma. In February 2015, the Board granted a schedular TDIU beginning October 5, 2012, and denied a TDIU on an extraschedular basis prior to October 5, 2012. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in an April 2015 Order, the Court granted the parties' Joint Motion for Remand (JMR), vacated the Board's denial, and remanded the matter to the Board for development consistent with the JMR. This appeal was remanded by the Board in June 2015, pursuant to the April 2015 JMR. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). As directed by the Board, the AOJ obtained a new medical opinion The AOJ then readjudicated the appealed issues and issued a supplemental statement of the case. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has indicated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's claim for TDIU was received on May 3, 2005. 2. It is factually ascertainable that the Veteran's service-connected disabilities, with a combined rating of 50 percent, rendered him unable to obtain and maintain substantially gainful employment consistent with his educational and occupational background from May 3, 2004 (one year prior to the date of receipt of his claim) to October 4, 2012. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for assignment of an extraschedular TDIU from May 3, 2004 to October 4, 2012 have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. § 3.321, 3.340, 3.341, 4.1, 4.3, 4.16(b), 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Extraschedular TDIU - Analysis TDIU is authorized for any disability or combination of disabilities where the schedular rating is less than total, and the claimant is unable to secure and maintain substantially gainful employment because of the severity of service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent. If two or more disabilities, at least one must be rated as at least 40 percent disabling, with sufficient additional service-connected disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 4.15 , 4.16(a). Disabilities from a common cause are considered one disability when determining if minimum rating requirements are met. If a claimant does not meet the minimum rating requirements of 38 C.F.R. § 4.16(a) for TDIU on a schedular basis, he can still establish a TDIU on an extraschedular basis. An extraschedular rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. For a TDIU, the critical question is whether the Veteran's service-connected disabilities alone are sufficient to cause unemployability, not any nonservice-connected condition. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). A claim for a rating of TDIU is an increased rating claim that follows the effective date rules of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400(o)(2). See Dalton v. Nicoholson, 21 Vet. App. 23 (2007); Hurd v. West, 13 Vet. App. 449, 451-52 (2000). In this regard, 38 U.S.C.A. § 5110(a) states that the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). Similarly, the implementing regulation states that the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 C.F.R. § 3.400. An exception to this general rule occurs in a claim for increased compensation. 38 C.F.R. § 3.400(o)(1). An effective date for an increased rating or TDIU claim may date back as much as one year before the date of the formal application for increase if it is "factually ascertainable that an increase in disability had occurred" within that timeframe . 38 U.S.C.A. § 5110(b)(2) ; 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). Stated in other terms, the earliest date possible for a TDIU rating is one year prior to receipt of the claim. 38 C.F.R. § 3.400(o)(2) (The effective date is the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date; otherwise, date of receipt of claim."). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in August 2009. The AOJ referred the claim for an extraschedular rating to the Director. In a July 2010 decision, the Director denied an extraschedular rating, and the AOJ continued the denial in a supplemental statement of the case dated December 2010. 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, 457 (2015). VA received the Veteran's claim for a TDIU on May 3, 2005. In the June 2007 rating decision on appeal, the RO denied entitlement to a TDIU. During the period under appeal, the Veteran's service-connected disabilities included lumbar degenerative joint disease, rated 40 percent disabling from November 1, 2004, and left leg radiculopathy, rated 10 percent disabling from January 29, 2004. The Veteran's combined disability rating for compensation purposes was 10 percent from January 2, 2001, 50 percent from January 29, 2004, 100 percent from August 14, 2004, 50 percent from November 1, 2004, and 70 percent from October 5, 2012. A schedular TDIU was granted from October 5, 2012. Statutory criteria set forth in 38 C.F.R. § 4.16(a) were not met prior to October 5, 2012 In June 2001, the Veteran was determined to be disabled by the Social Security Administration (SSA) due to his back disability and depression. SSA assigned an effective date of November 20, 2000. While the Veteran is service connected for his back disability, he is not service connected for depression. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). While the SSA addressed the specific question now before the Board (i.e., the earliest date at which the Veteran was too disabled to be gainfully employed), the Board notes that this decision grants TDIU for a period subsequent to the date of the SSA decision. In January 2002, the Veteran was afforded a VA examination to determine the nature and etiology of his joint conditions. The VA examiner noted that the Veteran performed manual labor for many years after service. He performed many different jobs, working for an insulation company, Coca-Cola for eight years, as an automobile mechanic for one year, and as a head school custodian for 10 years. The VA examiner noted that he had not worked since 1999. He first stopped working due to depression, but eight months later saw a doctor for back pain and was put off of work for back pain. The VA examiner stated that the Veteran had used a cane for at least one year when ambulating long distances, due to the pain. He was taking hydrocodone and a muscle relaxant. The VA examiner noted that the Veteran's pain was made worse by sitting, standing or walking for too long, but improved when he was in the fetal position. The VA examiner opined that the Veteran should be returned to work with restriction. He stated that the Veteran should stay away from strenuous manual labor, but he was able to perform a job that was not physically stressful. In a March 2002 letter, the Veteran's treating physician stated that he had pain with bending, stooping, lifting, or walking any distance. He also stated that sitting also aggravated the Veteran's pain. The physician noted that the Veteran required significant analgesics for the pain, including narcotics. He stated that the Veteran was totally and permanently disabled due to his back disabilities. In a March 2002 addendum to the January 2002 VA examination, the VA examiner opined that the Veteran should be able to perform a job, staying away from repetition of lifting, with repetition of carrying no more than 30 to 50 pounds. In a May 2005 Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was unemployable due to his service-connected back disability. He reported last working in November 1999, and having become too disabled to work in January 2000. He stated that he left his custodial job due to his disability. The Veteran reported that he completed high school, but had no additional education or training. He attributed his unemployability to the medications he took for his back disability. In May 2005, the Veteran was afforded a VA examination to determine the nature and etiology of his joint conditions. The VA examiner indicated that the Veteran was able to stand for up to one hour, and was unable to walk more than a few yards. He reported that a side effect of the current treatment was drowsiness. The VA examiner reported that the Veteran had a severe flare-up every two to three weeks, and the flare-up typically lasted a day. During a flare-up, the Veteran lost more than 50 percent of motion, affecting all motions of the spine. The Veteran also had severe fatigue, decreased motion, stiffness, weakness, lumbar spasms, and pain. In October 2005, the Veteran was afforded a VA examination. The VA examiner opined that the limitations on the Veteran's employability included prohibitions on lifting, carrying over 15 pounds, and prolonged standing or sitting without the ability to change position every 15 minutes. In May 2010, the Veteran was afforded a VA examination. The Veteran reported that the only disability which prevented him from obtaining or maintaining substantial, gainful employment was his lower back condition. The VA examiner noted that the Veteran underwent a lumbar laminectomy in August 2004 of L3 through L5. While his pain improved slightly after surgery, the pain eventually recurred and has progressed since that time. The VA examiner noted that the Veteran complained of a constant, sharp, and aching lower back pain which is located on the left side of his lower back and radiates into his left hip, thigh, and calf. The Veteran also reported a complete numbness of the anterior aspect of his left thing, intermittent tingling in his left calf, and some weakness of the left leg. He reported laying down two to three times per day to alleviate his sever back pain. He denied having flare-ups, but did have associated stiffness, fatigue, and spasms with the lower back pain. The VA examiner noted that the Veteran was unable to lift more than 20 pounds, sit for more than 30 minutes, or stand or walk for more than 30 minutes. The VA examiner also indicated that the Veteran's inability to stand or walk for more than 30 minutes affects his ability to go shopping with his wife, and he was limited in driving for more than 30 minutes at a time. The VA examiner opined that the Veteran would be unable to obtain or maintain substantial, gainful employment in occupations which require that he perform repetitive bending, lifting greater than 20 pounds or carrying greater than 15 pounds on a repetitive basis. The VA examiner also opined that the Veteran would be unable to perform duties which required that he do repetitive stair climbing, sitting for greater than 30 minutes, standing for greater than 30 minutes, or walking for greater than 30 minutes. In a February 2006 statement from the Veteran's most recent employer indicated that he stopped working in November 2000 because he "resigned to relocate closer to family." This is inconsistent with his statements in the May 2010 VA examination that he stopped working because his doctor told him to stop working due to his back disability. However, the Veteran's statement in May 2010 is consistent with the March 2002 statement from the Veteran's treating physician, D.B., that he was "totally and permanently disabled." In a November 2010 letter, the Veteran stated that the pain is often so bad that he is unable to get dressed in the morning, and he has to lie down in the afternoon due to the pain. He described being dependent on using a cane to ambulate, and not being able to walk very far. In December 2015, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran's low back disability adversely affects the Veteran's ability to function in an occupational environment. In support of this opinion, the VA examiner stated that the Veteran cannot stand for more than five minutes before his lower back pain worsens to the point that he must sit down or lie down. She also noted that he has not been able to do any heavy lifting for many years, and has not been able to do any medium level of lifting for at least 10 years. She states that lifting makes his low back pain worse. In addition, she states that the Veteran can only sit still for about 10-15 minutes at a time before his low back pain worsens, requiring him to stand up and walk around for a short distance. She also noted that the Veteran's severe low back pain requires him to spend 1-2 hours in bed two to three times per day, to lessen the strain on his back. The December 2015 VA examiner also provided a functional assessment of the effect of the Veteran's service-connected disabilities on his ability to work prior to October 5, 2012. She noted that the Veteran was awarded Social Security disability benefits in February 2002, and that this award was based on the Veteran's psychiatric conditions and low back disability. She cited the Veteran's reports that he stopped working in late 2000 due to the low back pain. The VA examiner noted that the objective medical data showed an increase in the severity of the Veteran's low back disability by 2004, with a February 2004 MRI showing moderate degenerative disc disease, spiral stenosis at several levels, and disc herniations of varying severity at every lumbar spinal level. He also underwent lumbar spine surgery in August 2004. She noted that a September 2006 MRI revealed disc herniation at two levels, moderate to severe spinal stenosis at L4-5, and mild spinal stenosis at two other levels. The VA examiner opined that it would not be unreasonable to determine that the Veteran was unemployable due to service-connected disabilities going back to 2001, as he had significant symptoms at that time. However, she noted that the objective medical findings show much worse disease as of 2004, and invasive and extensive spinal surgery was done based upon those findings, consistent with a greater level of disease and dysfunction. Of record is a January 2016 Memorandum from the Appeals Management Center (AMC) to the Director, Compensation Service, referring the extraschedular TDIU pursuant to the June 2015 Board remand. In February 2016, the Director, Compensation Service denied an extraschedular TDIU. The Director correctly restated the Veteran's employment and medical history, except that he incorrectly stated that the Veteran stated in his May 2005 TDIU claim that he stopped working as a custodian in November 2009 because of his back condition. The May 2005 TDIU claim actually stated that the Veteran stopped working as a custodian in November 1999. The Director explained his reasons for the denial by stating that the totality of the evidence does not show any extra-schedular entitlement to TDIU prior to October 5, 2012. He further stated that the record shows the Veteran with a reduced range of painful motion of the back and some numbness in the leg. The Director opined that the VA examinations are consistent in assessing limited range of motion with the only restriction being that of physical activity. He concluded by stating that unemployability has not been shown to be due solely to the back and leg conditions because of the many other disabilities on record. The claim for TDIU that led to this appeal was received May 3, 2005. Thus, the earliest possible effective date would be May 3, 2004, one year prior to his TDIU claim. In this regard, the Board finds that since May 3, 2004, the Veteran has been incapable of substantially gainful employment solely due to his service-connected disabilities, based on opinions rendered by VA and private sources. As will be discussed below, the Board is granting the Veteran an earlier effective date of May 3, 2004 for his TDIU, on an extraschedular basis. Since May 3, 2004 (one year prior to the formal claim), it was factually ascertainable that a TDIU rating was warranted on an extraschedular basis, as the evidence demonstrates that since this date the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected back disability. In a March 2002 letter, the Veteran's private physician indicated that the Veteran was totally and permanently disabled due to his back disabilities. In May 2010, it was noted by VA that the Veteran would be unable to obtain or maintain substantial or gainful employment in occupations requiring repetitive bending or lifting or carrying more than 20 pounds. During a 2015 VA examination, the examiner noted that the Veteran's unemployability due to service-connected disability went back to at least 2001. The Board finds that the evidence of record, offered by a private physician and the May 2010 and December 2015 VA examiners demonstrates that the Veteran has been unable to work in the fields in which he has training and experience since at last one year prior to his May 3, 2005 claim, and that the service-connected low back disability and left leg radiculopathy prevented him from securing and maintaining substantially gainful employment. But see February 2016 statement from the Director of Compensation and Pension. Resolving any doubt in the Veteran's favor, the Board finds that the evidence of record as a whole demonstrates that the Veteran has met the criteria set forth in 38 C.F.R. § 4.16, and accordingly, the Board finds that an extraschedular TDIU is warranted from May 3, 2004 to October 4, 2012. ORDER Entitlement to an extraschedular TDIU is granted from May 3, 2004 to October 4, 2012, subject to controlling regulations governing the payment of monetary awards ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs