Citation Nr: 1800455 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-45 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 7, 2012. REPRESENTATION Appellant represented by: Joel M. Ban, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Marine Corps from February 1982 to October 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal February 2010 and November 2010 rating decisions of a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The February 2010 rating decision increased the evaluation of degenerative disc disease of the lumbar spine to 20 percent effective February 4, 2009. The November 2010 rating decision granted service connection for left lower extremity radiculopathy and assigned an evaluation of 10 percent effective February 4, 2009 The Board considered the appeal in March 2013. At that time, the issues of entitlement to higher ratings for the Veteran's lumbar spine disability and left lower extremity radiculopathy were remanded for additional development The Board considered the appeal again in August 2014 and March 2016. In the August 2014 Board decision, the issues of entitlement to higher ratings for the Veteran's lumbar spine disability and left lower extremity radiculopathy were remanded so the Veteran can be afforded an additional hearing. In the March 2016 Board decision, a 20 percent schedular rating for left lower extremity radiculopathy and TDIU were granted, and the issues of higher ratings for the Veteran's lumbar spine disability and left lower extremity radiculopathy (in excess of 20 percent) were remanded for additional development. A September 2016 rating decision implemented the Board's March 2016 Board decision granting TDIU, and it assigned an effective date of August 7, 2013. The Board considered the appeal again in March 2017. At that time, the issue of entitlement to TDIU prior to August 7, 2013 was remanded for referral to the Director, Compensation Service for extra-schedular consideration. The Board finds there has been substantial compliance with its March 2017 remand directives. See 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 violation of Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board's remand) aff'd, 287 F.3d 1377 (2002). For example, in furtherance of the Board's remand instructions, the agency of original jurisdiction requested an administrative review by the Director, Compensation Service for extra-schedular consideration for TDIU. During the pendency of the appeal, in a March 2017 rating decision, the RO granted an earlier effective date of December 7, 2012 for TDIU. The award of TDIU effective December 7, 2012, constitutes a full grant of the TDIU benefit sought from December 7, 2012, and the issue of TDIU from that date is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). The appellant testified before a Veterans Law Judge (VLJ) at a November 2010 hearing at the RO in Salt Lake City, Utah; that VLJ had since retired from the Board. At the appellant's request, an additional hearing was scheduled and held with the undersigned VLJ in August 2015 at the RO. Transcripts from both hearings are associated with the claims file. The claim of TDIU is inferred with the claim of an increased rating and with evidence that the Veteran is unemployed. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (per curiam). FINDING OF FACT The competent and probative evidence shows that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to December 7, 2012. CONCLUSION OF LAW The criteria for TDIU have been met effective prior to December 7, 2012. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to TDIU prior to December 7, 2012. After reviewing the record, the Board finds that TDIU prior to December 7, 2012 is warranted. The reasons and bases for this decision will be explained below. VA has a duty to provide veterans with notice and assistance in substantiating a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As this decision grants TDIU prior to December 7, 2012, a full award of the benefit sought on appeal, a discussion on the Board's compliance with VA's duties on this issue is moot. As discussed in the Introduction, the grant of TDIU by the RO effective December 7, 2012 constitutes a full grant of the benefit sought for that period, and the issue of entitlement to TDIU after that date is no longer before the Board. At issue here is whether the Veteran is entitled to TDIU prior to December 7, 2012. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. See 38 C.F.R. § 4.16(a). The Veteran's combined ratings prior to August 7, 2013 did not meet either threshold requirement for TDIU. See id. §§ 4.16(a), 4.25. Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In compliance with 38 C.F.R. § 4.16(b), the AOJ referred the appellant's claim to the Director, Compensation Service. In June 2017, the Director, Compensation Service, completed an administrative review and concluded that entitlement to TDIU on an extra-schedular basis prior to December 7, 2012 was not established. Conversely, the Board has reviewed the evidence and finds that TDIU is warranted for the Veteran prior to December 7, 2012. See Wages v. McDonald, 27 Vet. App. 233, 235 (2015) (per curiam); 38 C.F.R. § 4.16 (b). The evidence shows that his service-connected lumbar spine disability and left lower extremity radiculopathy caused him to be unable to secure or follow a substantially gainful occupation. The Veteran's work history includes substantive physical labor. His military occupational specialty was field artillery fire control man. 10/19/1983, Certificate of Release or Discharge from Active Duty, at 1. After service, the Veteran worked in construction from 1994 to 2007 and then in condominium maintenance from 2007 until August 2008. See 11/30/2010, Hearing Testimony, at 19-21; see also 09/30/2010, VA Examination, at 2 (former condominium manager); 08/10/2009, Medical Treatment Records - Furnished by SSA, at 3 (last worked as a maintenance manager). The Veteran described his condominium manager role as involving cleaning and repairing building items; cleaning the premises, including the floors, walls, and furniture; disposing of garbage within the building; and operating fire alarm systems, inter alia. 11/30/2010, Hearing Testimony, at 19. His work was "pretty physical" and required him to periodically lift heaving items (such as cleaning product cases ranging from 50 to 60 pounds), significant amounts of walking, and taking the stairs. Id. Prior to being a condominium manager, he was a foreman for a log home construction company, where conducted some of the construction and engaged in other heavy physical activities. Id. at 21. As such, the Veteran's work had typically required him to be involved in substantive physical labor, including heaving lifting, and prolonged periods of standing and walking. At a July 2009 medical examination conducted through the U.S. Social Security Administration, the Veteran's functional limitations were measured. He was limited to walking fifty yards, standing for five to ten minutes, and lifting up to twenty pounds, all in part due to his back disability. 08/10/2009, Medical Treatment Records - Furnished by SSA, at 3. The examiner noted that the Veteran was unable to toe walk on his left side and that gait difficulties limited his ability to walk over uneven surfaces. Id. at 8. An April 2010 private examiner concluded that the Veteran's low back pain appears to have limited his normal activities and that they have worsened since service. Id. at 24. For example, the April 2010 examination showed the Veteran's inability to lift from the floor due to an inability to lower down without pain to grab a weight. Id. The Veteran indicated to the examiner that any prolonged position such as walking, sitting; and standing was limited to only short distances or ten minutes, and this his activities have been qualified. Id. at 23. Because of daily flare ups, he has to sleep or lay down 18 hours a day. Id. The Veteran stated to the April 2010 examiner that he is unemployed because he is unable to find work that would not exacerbate his symptoms. Id. Similarly, the Veteran informed a September 2010 VA examiner that he had to leave his job as a condominium manager because his back and left extremity disabilities did not allow him to be on his feet for long periods of time. 09/30/2010, VA Examination, at 2. Overall, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation prior to December 7, 2012 due to his service-connected disabilities. See 38 C.F.R. §§ 4.3, 4.16(a). ORDER TDIU prior to December 7, 2012 is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs