Citation Nr: 18152341 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 09-22 724 DATE: November 21, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities since January 26, 2016, is granted. Entitlement to a TDIU on an extraschedular basis from March 29, 2006, is granted. REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine prior to July 18, 2015, is remanded. REFERRED The issue of erectile dysfunction was raised in an August 2013 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT The Veteran’s service-connected disabilities preclude gainful employment. CONCLUSIONS OF LAW The criteria for entitlement to a TDIU have been met on a schedular basis since January 26, 2016. 38 U.S.C. § 1156; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. The criteria for entitlement to a TDIU have been met on an extraschedular basis from March 29, 2006. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to April 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2006 rating decision by the Phoenix Regional Office (RO) of the Department of Veterans Affairs (VA). The claim was previously before the Board in September 2013 and February 2016, on which occasions it was remanded. In its February 2016 remand directives, the Board referred consideration of entitlement to a TDIU rating on an extraschedular basis to the Director of Compensation Service. In July 2018 the requested development was accomplished and the appeal has returned for further appellate consideration. The Veteran presented testimony at a Board hearing in August 2012. A transcript of the hearing is associated with the Veteran’s claims folder. 1. Entitlement to a TDIU as a result of service-connected disabilities since January 26, 2016. 2. Entitlement to a TDIU on an extraschedular basis prior to January 26, 2016. Total disability ratings for compensation may be assigned where the schedular rating is less than total and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). Generally, to be eligible for TDIU a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. § 4.16(a)(1). If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57-58. Based on a review of the record, the Board finds that the Veteran’s service-connected disabilities precluded substantially gainful employment since March 29, 2006, the date the Veteran was terminated from his previous employment. (8/15/2006, Third Party Correspondence, p. 1). The Veteran’s post-military employment history includes working as a welder for 12 years and as a mason for 14 years. (12/17/2013, Medical Treatment Records – Furnished by SSA, p. 20). The Veteran completed one year of college in 1978 and received vocational training in masonry and welding in 1987. (12/17/2013, Medical Treatment Records – Furnished by SSA, p. 23). The Veteran is currently service-connected for degenerative arthritis of the spine (40 percent from July 18, 2015; 20 percent from March 12, 1996; 10 percent from October 15, 1984), left upper extremity radiculopathy (20 percent from January 26, 2016), right upper extremity radiculopathy (20 percent from January 26, 2016), osteoarthritis of the cervical spine (20 percent from March 19, 2016; 10 percent from January 11, 2006), residuals of meniscectomy, right knee (10 percent from March 1, 1997; 100 percent from January 27, 1997; 10 percent from November 14, 1996), left lower extremity radiculopathy (10 percent from July 18, 2015), and right lower extremity radiculopathy (10 percent from July 18, 2015). His current combined rating is 80 percent effective January 26, 2016, 60 percent effective July 18, 2015, 40 percent effective January 11, 2006, and 30 percent effective March 1, 1997. The Board concludes that the Veteran meets the minimum percentage requirements for TDIU as of January 26, 2016. (8/3/2018, Rating Decision – Codesheet, p. 1-2). For the period prior to January 26, 2016, the schedular threshold requirements for TDIU were not met. As the issue of extraschedular consideration was adjudicated in the first instance by the Director of Compensation Service in July 2018, (7/25/2018, Miscellaneous C&P Correspondence, p. 1-2), the Board is now free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). In an August 2006 statement, the Veteran asserts that he was terminated from his employment as a welder for a wind energy company due to his service-connected back and neck disabilities. (8/15/2006, VA 21-4138 Statement in Support of Claim, p. 1). He attached a letter from his employer stating he was terminated as a direct result of his inability to perform the essential function of his previous position and because accommodations were not reasonable given the nature of his work. (8/15/2006, Third Party Correspondence, p. 1). The Board acknowledges that the Social Security Administration (SSA) determined the Veteran to be disabled for SSA purposes as of October 1, 2005. (12/17/2013, Medical Treatment Records – Furnished by SSA, p. 2). In light of the fact that there are significant differences in the definition of disability under the SSA and VA systems, SSA determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). On the other hand, there are also significant similarities between the two systems. Consequently, the Board must provide the basis for not accepting a finding of disability by a SSA administrative law judge. Id. A March 2006 decision from the SSA determined that the Veteran was disabled based on a diagnosis of discogenic and degenerative disorders of the back. (12/17/2013, Medical Treatment Records – Furnished by SSA, p. 2). The Board notes that the Veteran is service connected for the same disabilities that the SSA determined precluded him from working. The Veteran’s SSA records include a “physical residual functional capacity assessment” which determined that the Veteran is limited to occasional lifting of 10 pounds, frequent lifting of less than 10 pounds, standing and walking of at least 2 hours in an 8-hour workday, sitting less than about 6 hours in an 8-hour workday with sitting limited to 30 minutes before changing position. (12/17/2013, Medical Treatment Records – Furnished by SSA, p. 28, 38). In keeping with the SSA’s findings, the Veteran indicated that his chronic pain is aggravated by sitting. (12/17/2013, Medical Treatment Records – Furnished by SSA, p. 5). His statement is supported by the observations of a SSA examiner, who noted that the Veteran “was in obvious lower back pain as he sat and walked.” (12/17/2013, Medical Treatment Records – Furnished by SSA, p. 16). A July 2015 VA examiner noted that the Veteran’s “significant worsening pain and limited motion limits ability to perform and sustain manual labor.” Moreover, the examiner noted that the veteran “poorly tolerated” prolong standing and sitting. (7/18/2015, CAPRI, p. 7). A March 2016 VA examiner indicated that the Veteran’s lumbar spine disability causes “severe pain with ambulation, lifting.” (3/24/2016, C&P Exam, p. 3). Moreover, the lumbar spine disability caused instability of station, disturbance of locomotion, and interference with sitting and standing. (3/24/2016, C&P Exam, p. 5). The examiner opined that the Veteran’s lumbar spine disability makes it “extremely difficult for the [V]eteran to continue working as a welder . . .” (3/24/2016, C&P Exam, p. 9). Moreover, the examiner noted that the Veteran’s knee disability causes pain with motion and weight bearing, which limits the Veteran’s ability to perform tasks that require prolonged standing and heavy lifting. (3/24/2016, C&P Exam, p. 10, 17). In reference to the Veteran’s cervical spine disability, the examiner noted that the disability causes pain with motion, limits his ability to look in all direction, and interferes with sitting and standing. (3/24/2016, C&P Exam, p. 18, 20). The examiner opined that the Veteran would have difficulty with tasks “involving looking up or needing to have a wide field of view.” (3/24/2016, C&P Exam, p. 23). In June 2018 the RO conducted an administrative review for entitlement to TDIU. The reviewer notes that the Veteran previously worked as a welder and was terminated from his employment due to a thoracolumbar spine disability. The reviewer recommended that entitlement to TDIU be granted on an extra-schedular basis. In July 2018 the Director of Compensation Service considered entitlement to TDIU on an extraschedular basis, and concluded that the totality of the evidence did not establish that any of the Veteran’s service connected disabilities or a combination of the effects of the service connected disabilities prevents all employment. Based on the competent and probative medical and lay evidence, the Board concludes that the Veteran is unable to secure of follow a substantially gainful occupation due to his service-connected disabilities. The Board recognizes that the Director of Compensation Service concluded that the Veteran was capable of “sedentary” employment. However, the record indicates that the Veteran is unable to tolerate prolonged sitting and is limited to less than 6 hours of sitting in an 8-hour workday with sitting limited to 30-minute intervals before changing positions. Moreover, the Veteran indicated during his SSA assessment, that prolonged sitting aggravates his back pain. In sum, as the competent and probative medical and lay evidence indicates that the Veteran is precluded from employment that requires manual labor, prolonged sitting, and prolonged standing, the Board concludes that the Veteran is unable to secure of follow a substantially gainful occupation due to his service-connected disabilities. Thus, entitlement to TDIU on an extraschedular basis for the period of March 29, 2006, to January 26, 2016, is granted, and entitlement to TDIU on an schedular basis for the period beginning January 26, 2016, is granted. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine prior to July 18, 2015, is remanded. In a February 2016 Board decision, the Veteran’s claim for a rating in excess of 20 percent for degenerative arthritis was remanded with a directive to the RO to request a VA examiner “retroactively estimate any loss of function as a result of flare-ups reported at the prior examinations.” (2/19/2016, Remand BVA or CAVC, p. 12). The RO complied with the request and an addendum opinion was issued in August 2016. (8/29/2016, C&P Exam, p. 1). While the Board finds that the RO substantially complied with the previous remand directives by securing the August 2016 addendum opinion, the Board concludes that the August 2016 opinion is inadequate for evaluation purposes. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The August 2016 examiner provided an estimation of the Veteran’s loss of range of motion as requested. However, the examiner failed to provide rationale for how the estimation was calculated. The magnitude of this oversight is amplified when one compares the August 2016 examiner’s estimation of range of motion during a flare-up to the February 2009 examiner’s objective findings of the Veteran’s general range of motion. In February 2009, objective testing found the Veteran’s forward flexion to be 0 to 60 degrees. (2/19/2009, VA examination, p. 1). Conversely, the August 2016 examiner estimated that a flare-up would result in a forward flexion of 0 to 70 degrees. (8/29/2016, C&P Exam, p. 1). The August 2016 examiner’s estimation suggests that the Veteran’s range of motion improved by 10 degrees during a flare-up of pain. If the August 2016 examiner was intending to indicate that the Veteran’s range of motion improved during flare-ups, then a reasoned medical explanation of the examiner’s conclusion is necessary. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion . . . must support its conclusions with an analysis that the Board can consider and weight . . .”). The matter is REMANDED for the following action: 1. The RO should obtain copies of VA treatment records for the Veteran’s degenerative arthritis of the spine from June 2018 to the present. 2. Schedule the Veteran for an examination of the severity of his degenerative arthritis of the spine. (a.) The examiner is requested to review the VA examinations from February 2009 and May 2011, with particular attention to the reports of flare-ups. (b.) The examiner should estimate any loss of function as a result of flare-ups reported at the prior examinations. The examiner should provide a reasoned medical explanation for any conclusions reached. (c.) The examiner should note any periods of incapacitation requiring bedrest by a physician. (d.) If the information cannot be provided then a specific reason should be given for why this is so. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Glenn, Law Clerk