Citation Nr: 1756959 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-00 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to September 5, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Navy from November 1968 to October 1973. He is the recipient of the Good Conduct Medal on two occasions. This matter originally came to the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2014, the Board remanded the matter for additional evidentiary development. In an October 2016 decision, the Board granted TDIU from September 5, 2012, and denied TDIU prior to that date. The appellant appealed the Board's October 2016 decision to the Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the appellant and a representative of VA's General Counsel filed a Joint Motion for Partial Remand. In a June 2017 order, the Court granted the motion, vacated that portion of the October 2016 Board decision which denied entitlement to TDIU prior to September 5, 2012, and remanded the matter for action consistent with the terms of the joint motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant is in receipt of a TDIU beginning September 5, 2012. He seeks a total rating based on individual unemployability due to service-connected disabilities prior to such date. The appellant's Form 21-8940 was received by VA on May 5, 2009. Prior to May 5, 2009, service connection was in effect for a left ankle disability, rated at 10 percent disabling, and a lumbar spine disability, rated at 10 percent disabling. The appellant's combined rating was 20 percent. Effective May 5, 2009, the appellant's lumbar spine disability was rated at 20 percent disabling. His combined rating was 30 percent. From June 25, 2009, to October 3, 2011, service connection was in effect for a left ankle disability, rated at 10 percent disabling, a lumbar spine disability, rated at 20 percent disabling, and posttraumatic stress disorder (PTSD), rated at 30 percent disabling. His combined evaluation for compensation was 50 percent. From October 4, 2011, to September 4, 2012, service connection was in effect for a left ankle disability, rated at 10 percent disabling, a lumbar spine disability, rated at 20 percent disabling, PTSD, rated at 30 percent disabling, and gastritis with gastroesophageal reflux (GERD), rated at 10 percent disabling. His combined evaluation for compensation was 60 percent. The appellant does not meet the schedular criteria for a total rating based on individual unemployability under 38 C.F.R. § 4.16(a) for any portion of the period on appeal because no one disability was rated at 60 percent disabling, nor was his combined evaluation for compensation at least 70 percent. Although the appellant does not meet the schedular criteria for a total rating based on individual unemployability under 38 C.F.R. § 4.16(a) for any portion of the period on appeal, the record contains evidence suggesting that he may be entitled to an award of a total rating based on individual unemployability on an extraschedular basis. For example, that evidence includes that the appellant's reports that he is unable to stand or sit for more than 15 minutes at a time. He reported that his back precludes him from sitting, while his ankle and back preclude him from standing. He has been receiving Social Security Administration (SSA) disability benefits since 2003. However, when he applied for such benefits, he reported that he was unable to work due to his back and associated nerve damage, degenerative arthritis of the left ankle, and a torn left wrist tendon, beginning March 30, 2003, when he resigned from a sedentary position. Service connection is not in effect for a left wrist disability at any point during the period on appeal. Medical evidence used by SSA in its favorable determination included June 2003 diagnoses of dysthymic disorder and generalized anxiety disorder. Service connection for a psychiatric disorder was not in effect until June 25, 2009, which has been denoted as mood disorder, depressive type, and as PTSD at varying times. A March 2003 note from Dr. F.D. states that the appellant was a patient at the VA Hospital in Gainesville for chronic low back pain. It was noted that he would benefit from the avoidance of prolonged sitting, standing, stooping, walking, climbing, and bending, and that he should not lift more than five pounds. A March 2010 clinical note states that the appellant only sleeps for two hours at a time because he gets into the wrong position, which awakens him. During his March 2010 VA examination, it was noted that the appellant was independent in activities of daily living, although he could not sit or stand for a very long time due to back and ankle pain. The examiner opined that neither the ankle disability nor the back disability precluded sedentary employment, although the appellant could not perform physical labor. However, significant effects on the appellant's usual occupation were noted with respect to both his ankle and back disabilities. A statement from L.W. was received in December 2011. She stated that she has known the appellant since 2003, when he had just resigned from his last job because of back problems. She reported that his back pain flares up almost constantly and is unable to get out of bed at least once a week. He had to employ a housekeeper and eventually had to move in with his son. When his son moved out of state in August 2009, the appellant had to follow because he could not live independently. The September 2012 VA examiner opined that the appellant's back and ankle pain impedes his ability to continuously ambulate but not to the degree that he is unable to perform sedentary work. His pain medications likely reduce his ability to concentrate on complex tasks, but he is likely able to complete simple, repetitive tasks when sitting down. The Board observes that the medical evidence of record reflects that the appellant has been taking such pain medications throughout the period on appeal, and even as far back as 2005, per a December 2005 clinical note. These medications include oxycodone and morphine. He also takes Prozac for his psychiatric disability. In March 2013, the appellant reported that he had been provided a sedentary job in 2003, but was unable to even sit at a desk all day; thus, he resigned. He stated that the multitude of medications he takes renders him unable to drive a vehicle. He also reported that he is unable to get out of bed the day after being "the least bit active." In the October 2017 representative's brief, it is noted that common side effects for oxycodone include constipation, drowsiness, nausea, pruritis, and vomiting; and common side effects of morphine include drowsiness, dizziness, constipation, stomach pain, nausea, vomiting, headache, tired feeling, anxiety, and mild itching. Given the evidence discussed above, the Board finds that referral for consideration of an extraschedular TDIU is appropriate. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the appellant's claim to the Director, Compensation Service, for consideration of assignment of a total rating based on individual unemployability due to service-connected disability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). 2. After the development requested above is completed, the AOJ should readjudicate the claim, considering all the evidence of record. If the determination remains adverse to the appellant, he and his representative should be furnished with a Supplemental Statement of the Case and an appropriate period of time to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).