Citation Nr: 1721041 Decision Date: 06/09/17 Archive Date: 06/21/17 DOCKET NO. 10-06 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) prior to May 8, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In June 2016, the Board determined that, although entitlement to a TDIU had not been certified to the Board, that issue was on appeal as part of the certified appeal for an increased rating for his service-connected disabilities, to include the lumbar spine disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then determined that a TDIU was warranted, effective May 8, 2008, the first day the Veteran met the schedular criteria for a TDIU under 4.16(a)(2016). The Board then remanded the issue of entitlement to a TDIU prior to May 8, 2008, and instructed the AOJ to refer the issue to the Under Secretary for Benefits or the Director of Compensation to consider whether entitlement to a TDIU prior to May 8, 2008, was warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b)(2016). FINDINGS OF FACT For the period prior to May 8, 2008, the Veteran's service-connected lumbar disc disease rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW For the period prior to May 8, 2008, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.102, 4.16 (b) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the Veteran's claim is being granted in full herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159. Entitlement to a TDIU rating on an extraschedular basis for the period prior to May 8, 2008 Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more; and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). From January 15, 2003, to May 8, 2008, the Veteran's only service connected disability was lumbar disc disease, rated as 40 percent disabling. Therefore, the Veteran did not meet the schedular criteria for a TDIU prior to May 8, 2008, see 38 C.F.R. § 4.16 (a), and his claim must be considered under the criteria of 38 C.F.R. § 4.16 (b). Where the percentage requirements for a TDIU are not met, a total disability 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). His claim for a TDIU on an extraschedular basis must be submitted to the Director of Compensation Service for initial adjudication. Id. Discussion In accordance with the Board's June 2016 remand instructions, the AOJ referred the Veteran's claim to the Director of Compensation Service for extraschedular consideration. In an April 2017 administrative decision, the Director denied entitlement to an extraschedular evaluation, finding that the medical evidence of record did not satisfactorily demonstrate that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disability prior to May 8, 2008. Since the Veteran's claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board may address the merits of the Veteran's claim for an earlier effective date for the grant of a TDIU, to include on an extraschedular basis. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Pertinent evidence of record includes the Veteran's VA treatment records, VA examinations, and his statements. He reported that he lasted worked as corrections officer in August 1996 and that he had been unable to secure employment, in part, due to his service-connected lumbar disc disease. See February 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A May 12, 1997 letter from the Social Security Administration (SSA) reflected that the Veteran was deemed disabled due to the lumbar spine disability as of August 30, 1996. A cotemporaneous SSA Field Report noted that, during the interview, the Veteran had a very difficult time standing, sitting, and walking due to back pain. It was noted that he was last employed as a corrections officer and that such employment involved both standing and sitting. A private treatment record contained in the Veteran's SSA application indicated that he was unemployed and "disabled" due to back pain. In a December 2003 letter, the Veteran's Board Certified internist (Dr. R.M.) stated that the Veteran was physically disabled due to severe spinal disease and that he supported "his application for classification as physically disabled." In a later dated letter, Dr. R.M. included MRI studies from 2006 and 2008, and again stated that the Veteran was disabled because of "severe" degenerative disc disease of the lumbar spine, which caused difficulty walking and pain when sitting, standing, and lying in bed. He noted that the Veteran had undergone two lumbar spine surgeries over the past 12 years, but had benefited little from these procedures. During a May 2004 VA spine examination, the Veteran reported that he underwent a microdiscectomy in 1998 due to significant back pain that affected his ambulation. Subsequent to the surgery, the Veteran stated that he was able to ambulate but that he had been disabled and on Social Security disability since that time. He endorsed constant back pain and stated that walking was very difficult and limited as a result. A May 2008 VA spine examination noted that the Veteran's lumbar spine pain was exacerbated by prolonged sitting, standing, walking up hill, lying down, and bending over, and that he experienced daily flare-ups of pain which resolved with rest/lying down. His service-connected lumbar spine disability was described as increasingly severe. A January 2014 VA spine examination noted that the Veteran's service-connected lumbar spine disability was exacerbated by prolonged periods of sitting, standing, and lying down. The examiner opined that the Veteran's low back symptoms limited the type of job that he would be able to secure, to include both physical labor and desk-type jobs. In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected lumbar spine disability rendered him unemployable or unable to secure and follow a substantially gainful occupation prior to May 8, 2008. As an initial matter, the Veteran has consistently and competently reported that he has been unable secure and maintain employment since 1996 due to chronic low back pain. Evidence obtained from SSA confirms that he has not worked since 1996 and that SSA deemed him unemployable due lumbar spine disease in 1997. Contemporaneous SSA medical reports/interviews show significant impairment with sitting, walking, and standing as a result of low back pain. In 2003, the Veteran's private physician described him as "physically disabled" due to "severe" lumbar disease and noted that he had difficulty standing, walking, and sitting as a result of back pain. In 2014, the VA examiner indicated that the Veteran's back pain and associated limitations with standing, sitting, and lying down likely limited his ability to engage in both sedentary (desk-type) and physical labor jobs. The Board recognizes the Veteran was in receipt of a schedular TDIU as of May 2008, but nevertheless considers the 2014 findings relevant to the claim for an extraschedular TDIU prior to that date. Indeed, the 2014 examiner's opinion was not only based on currently reported low back symptomatology, but also a longitudinal and historical review of the Veteran's low back symptoms and associated functional/occupational impairments. In other words, the occupational limitations noted on examination in 2014 (i.e., difficulties walking, standing, and sitting for prolonged periods causing limitations with both sedentary and physical employment), were also likely present before those date, as confirmed by the 2008 VA examination and earlier-dated lay statements, physicians' letters, and SSA evidence. Resolving all reasonable doubt in his favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected lumbar disc disease rendered him unemployable or unable to secure and follow a substantially gainful occupation prior to May 8, 2008. An extraschedular TDIU effective from January 15, 2003 (i.e., the date of receipt of the Veteran's original claim for service connection for a low back disability), to May 8, 2009, is therefore granted. (CONTINUED ON NEXT PAGE) ORDER A total disability rating based on individual unemployability as a result of service-connected disability, on an extraschedular basis, for the period on appeal prior to May 8, 2008, is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs