Citation Nr: 18145921 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-29 446 DATE: October 30, 2018 ORDER A total disability based on individual unemployability (TDIU) prior to August 1, 2009 is denied. A TDIU from August 1, 2009 and prior to October 31, 2016 is granted. FINDINGS OF FACT 1. The Veteran was employed until July 31, 2009, on which occasion he retired from gainful employment. 2. The competent and probative evidence shows that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for from August 1, 2009 and prior to October 31, 2016. CONCLUSIONS OF LAW 1. The criteria for TDIU have not been met prior to August 1, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 2. The criteria for TDIU have been met from August 1, 2009 and prior to October 31, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1953 to August 1958. This matter comes before the Board on appeal from a June 2015 rating decision of the VA Regional Office (RO) in Saint Louis, Missouri. The rating decision implemented that Board’s April 2015 decision that granted service connection for the Veteran’s back disability and assigned an evaluation of 20 percent, effective January 14, 2009. In an April 2017 rating decision, the RO increased the Veteran’s low back rating to 40 percent, effective October 31, 2016. The April 2017 rating decision also granted service connection for the Veteran’s sciatic nerve disability affecting the lower right and lower left extremities and assigned an evaluation of 10 percent effective November 13, 2015 for each lower extremity. The claim of TDIU is inferred with the claim for an increased disability rating based on evidence that the Veteran was unemployed. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (per curiam) (“[A] request for TDIU... reasonably raised by the record... involves an attempt to obtain an appropriate rating for a disability or disabilities, [including] as part of a claim for increased compensation.”). The appeal was before the Board again in September 2017. At that time, the Board denied an initial disability rating in excess of 40 percent for the Veteran’s back disability from October 31, 2016; denied an initial disability rating in excess of 20 percent for the Veteran’s back disability prior to October 31, 2016; granted an initial rating of 20 percent for the Veteran’s right lower extremity radiculopathy from October 31, 2016; granted an initial rating of 10 percent, but no higher, for the Veteran’s right lower extremity radiculopathy from February 1, 2010 and prior to October 31, 2016; granted an initial rating of 20 percent for the Veteran’s left lower extremity radiculopathy from October 31, 2016; and granted an initial rating of 10 percent, but no higher, for the Veteran’s left lower extremity radiculopathy from February 1, 2010 and prior to October 31, 2016. The Board remanded the issue of entitlement to TDIU for additional development. Following the September 2017 Board remand, the agency of original jurisdiction (AOJ), in a January 2018 rating decision, granted TDIU effective October 31, 2016. This award, effective October 31, 2016, constitutes a full grant of the service connection benefit sought from October 31, 2016, and this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158–59 (Fed. Cir. 1997) (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). 1. Entitlement to total disability based on individual unemployability (TDIU) prior to August 1, 2009. The evidence indicates that the Veteran was employed as an apartment manager until July 31, 2009, at which time he retired. Specifically, the Veteran indicated to at a February 2010 VA examination. The VA Form 21-8940 indicates that the Veteran worked 40-50 hours per week and had highest gross earning in a month of $3,400. Because the Veteran remained employed, in apparent full-time capacity and no indications of marginal employment, until July 31, 2009, the issue of entitlement to TDIU prior to August 1, 2009 is denied. 2. Entitlement to TDIU from August 1, 2009 and prior to October 31, 2016. As discussed in the Introduction, the grant of TDIU by the RO October 31, 2016 constitutes a full grant of the benefit sought for that period, and the matter for that period is no longer before the Board. Furthermore, the matter of entitlement to TDIU prior to August 1, 2009 was determined to be moot. At issue here is whether the Veteran is entitled to TDIU August 1, 2009 and prior to October 31, 2016. 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. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, this disability shall be rated at 60 percent or more. Id. If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more, and there must also be sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran’s combined ratings prior to August 1, 2009 did not meet either threshold requirement for TDIU. 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 May 2018, the Director, Compensation Service, completed an administrative review and concluded that entitlement to TDIU on an extra-schedular basis prior to October 31, 2016 was not established. Conversely, the Board has reviewed the evidence and finds that TDIU is warranted for the Veteran from August 1, 2009 and prior to October 31, 2016. See Wages v. McDonald, 27 Vet. App. 233, 235 (2015) (per curiam); 38 C.F.R. § 4.16 (b). Although the Board does not have the authority to allow TDIU on an extraschedular basis in the first instance, it does have the authority to review the Director's determinations de novo. Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). A decision from the Director of Compensation Service "is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence...It is simply a decision that is adopted by the [regional office] and reviewed de novo by the Board." Wages, 27 Vet. App. at 239. The evidence shows that his service-connected lumbar spine disability and bilateral lower extremity radiculopathy caused him to be unable to secure or follow a substantially gainful occupation. The Veteran’s work history includes physical labor. His highest level of education is completing high school. His military occupational specialty was rotary wing aviator and he was also a parachutist. After service, the Veteran flew a helicopter and was then a construction superintendent until 1987. He worked as an apartment manager until he retired on July 31, 2009. It is reasonable to expect that the apartment manager role would have involved tasks such as including cleaning and repairing building items, cleaning the premises, and disposing of garbage—physical activities requiring extended walks (including taking the stairs) and lifting. It is also reasonable to expect that construction supervisory work involves non-sedentary physical activities. The Veteran’s work had typically required him to be involved in substantive physical labor, including lifting, and prolonged periods of standing and walking. Medical treatment records reflect that during the period from August 1, 2009 and prior to October 31, 2016, the Veteran experienced pain while standing and walking, and that he is unable to walk well. A private provider indicated that the Veteran was “[u]nable to perform much in the way of household tasks” and that he was “quite incapacitated by [his back disability] on a regular basis.” The Board acknowledges the May 2018 advisory opinion issued by the Director, Compensation Service, but notes that the opinion does not consider that the Veteran’s work has typically required non-sedentary physical labor. (Continued on the next page)   Overall, the Board finds that the evidence shows that the Veteran was unable to secure or follow a substantially gainful occupation from August 1, 2009 and prior to October 31, 2016 due to his service-connected disabilities. See 38 C.F.R. §§ 4.3, 4.16(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel