Citation Nr: 18152896 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 12-12 612 DATE: November 27, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from November 17, 2010, to December 12, 2012, is granted. FINDINGS OF FACT 1. For the period from November 17, 2010, to December 12, 2012, the Veteran did not meet the schedular criteria for TDIU. 2. The Veteran was unable to obtain or secure a substantially gainful occupation as a result of service-connected disabilities for the period from November 17, 2010, to December 12, 2012. CONCLUSION OF LAW The criteria for entitlement to TDIU from November 17, 2010, to December 12, 2012, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from September 1984 to October 2008. 1. Entitlement to TDIU prior to December 12, 2012 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2018). A finding of total disability is appropriate “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(a)(1), 4.15 (2018). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran 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, such disability shall be ratable as 60 percent or more and if there are two or more 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). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background, including his employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). In this case, the Board notes that the Veteran is in receipt of TDIU benefits from December 12, 2012, pursuant to a September 2016 Board decision that was effectuated in a February 2018 rating decision. The Veteran’s claim for TDIU was filed on November 17, 2010, and prior to that date there was no outstanding claim for TDIU. As such, the Board will limit its consideration to entitlement to TDIU for the period from November 17, 2010, to December 12, 2012. For that time period, the Veteran’s service-connected disabilities included degenerative disc disease of the thoracolumbar spin, rated as 20 percent disabling; overactive bladder with stress incontinence, rated as 10 percent disabling; adjustment disorder with depression, rated as 10 percent disabling; left knee osteoarthritis, rated as 10 percent disabling; right hand osteoarthritis, rated as 10 percent disabling; left hand osteoarthritis, rated as 10 percent disabling; right knee osteoarthritis, rated as 10 percent disabling; left elbow epicondylitis, rated as noncompensably disabling; gastroesophageal reflux disease, rated as noncompensably disabling; costochondritis, rated as noncompensably disabling; hypertension, rated as noncompensably disabling; left thyroid echoic nodule, rated as noncompensably disabling; and migraine headaches, rated as noncompensably disabling. As such, the Veteran’s combined rating was 60 percent for the entire relevant appellate time period. Even accounting for the bilateral factor and the osteoarthritis affecting the entire body system, the Veteran did not meet the schedular criteria for TDIU for the relevant time period. Therefore, the Veteran’s service-connected disabilities did not meet the percentage rating standards for TDIU for any period on appeal. 38 C.F.R. § 4.16(a). Thus, for the period on appeal the Board must now consider whether the evidence reflects that the Veteran’s service-connected disability rendered her unemployable from November 17, 2010, to December 12, 2012. In her January 2011 notice of disagreement, the Veteran argued that it was her arthritis in multiple joints, as well as contributing factors from the combined effect of all service-connected disabilities. She indicated that she has been unable to work since October 2008, when she separated from active duty. See November 2010 VA Form 21-8940. She has four years of college education, attended human resources officer school, and was a human resources specialist for her entire military career. A February 2011 private psychiatric report is of record. She reported some depressive mood and sleep disturbance with nightmares for the previous 7 years. She also had intermittent depression, insomnia, and mild anxiety when she was overwhelmed by stressful conditions related to her mother’s caregiving. On evaluation, she had no psychiatric problems other than mild depressive disorder that did not seem to impair her cognitive, affective, and social functioning. A February 2011 private joint examination included the Veteran’s complaints of chronic low back, bilateral knees, ankle, wrist, and finger pain. On examination, the Veteran had thoracolumbar forward flexion to 50 degrees, extension to 22 degrees, right lateral bending to 24 degrees, and left lateral bending to 26 degrees. As to the knees, bilateral flexion was to 136 degrees actively and 140 degrees passively and extension to 4 degrees. There was no instability, but there was patellar grinding. Bilateral ankle ranges of motion were normal, but there was positive instability in the left ankle. Bilateral elbow ranges of motion were normal, but there was tenderness to palpation. The bilateral wrists showed full ranges of motion. There was a swan neck deformity of the fourth finger on the right hand. Imaging showed disc space narrowing in the lumbar spine, mild degenerative changes in the bilateral ankles, minimal degenerative changes in the bilateral elbows, minimal degenerative changes in the knees, normal wrists, and disc bulging in the thoracolumbar spine. The diagnoses were degenerative cervical / lumbar spondylosis, bilateral degenerative arthritis of the knee, right ankle, and both hands. An April 2011 VA medical examination is of record. The Veteran had been anti-hypertensive for 3 to 4 years and testing had been negative. Thyroid function tests had been normal. The Veteran had experienced migraine-like headaches a “long time ago, but not anymore.” The Veteran had symptoms of urinary frequency and stress urinary incontinence, with symptoms of overactive bladder and stress incontinence would not interfere with her ability to secure and maintain substantially gainful employment and would not lead to functional impairment that would impair physical and sedentary employment. The Veteran’s April 2012 substantive appeal claimed that the combination of all disabilities prevented her from gaining employment. The constant pain from arthritis prevented her from getting restful sleep and pain affecting her concentration. A December 2012 elbow examination showed right elbow flexion to 120 degrees (pain began at 125 degrees) and extension to 0. Left elbow flexion was to 110 degrees, with pain onset at 120 degrees, and extension was to 0. Muscle strength was normal and there was tenderness to palpation. The elbow problems affected occupational functioning in that powerful elbow flexion and pronation resulted in pain and discomfort. Hand examination noted occupational problems due to grip difficulties. Knee examination showed right knee flexion to 110 degrees (with pain onset at 120 degrees) and full extension. Left knee flexion was to 90 degrees (with pain onset at 120 degrees) and full extension. There were problems due to difficulty standing for long periods of time. A back examination showed thoracolumbar forward flexion to 30 degrees (with pain onset at 40 degrees), extension to 20 degrees (with pain onset at 20 degrees), right lateral flexion to 10 degrees (with pain onset at 15 degrees), left lateral flexion to 15 degrees (with pain onset at 15 degrees), and right and left lateral rotation to 15 degrees (with pain onset at 15 degrees for the right and to 20 degrees on the left). There was an impact on occupational functioning in that standing and sitting caused difficulties. A mental disorder examination indicated that the mental health symptoms did not affect the Veteran’s occupational functioning. The Veteran’s problems with urinary incontinence and headaches did not affect her ability to work. A January 2013 hypertension examination noted that the Veteran was on continuous medication, but that the hypertension did not affect her ability to work. A January 2013 GERD examination noted that the disability would cause moderate discomfort in doing daily work, with symptoms of reflux, substernal arm or shoulder pain, and recurrent nausea 4 or more times per year. A thyroid examination was normal. The September 2016 Board decision granted entitlement to TDIU based on the Veteran meeting the schedular requirements for TDIU, the December 2012 and January 2013 examination reports, and her lay statements. Specifically, the Board determination noted that the Veteran last worked in October 2008 and that the examination reports stated that the Veteran had difficulty standing for long periods of time and difficulty and pain with getting up due to her knee disabilities, difficulty with grip due to her bilateral hand and finger disabilities, and pain and discomfort with left elbow flexion and pronation. The January 2013 examiner found that the Veteran had moderate discomfort with doing daily work due to GERD. The foregoing combined with the Veteran’s competent and credible statements that pain from service-connected disabilities affected her sleep and ability to concentrate was sufficient for the Board to grant TDIU benefits from December 12, 2012. Review of the evidence fails to indicate a substantial worsening of the Veteran’s symptoms beginning on December 12, 2012. Her lay reports relied on by the Board were from April 2012. In addition, the February 2011 joint examination did not discuss at what point in the arcs of motion pain began. The Board finds this omission potentially extremely significant because the December 2012 examination reports include confusing notations as to the Veteran’s ranges of motion. Several reports included findings where the Veteran’s total range of motion documented initially was less than the point in the arc of motion where pain was first noted. For example, and as noted above, there was noted thoracolumbar forward flexion to only 30 degrees; however, immediately thereafter the examiner indicated that there was objective evidence of pain from 40 degrees. Thus, there is a suggestion that the Veteran actually had thoracolumbar forward flexion of at least 40 degrees, rather than merely 30 degrees as originally noted in the report. Given the absence of any notation as to the point of pain onset in the February 2011 joint examination, the confusing and contradictory evidence noted in the December 2012 joint examinations, and the Veteran’s consistent reports of joint symptoms, the Board will afford the Veteran the benefit of the doubt that entitlement to TDIU is warranted for the period from November 17, 2010, to December 12, 2012. The Board places probative weight on the overall impairment imposed by the multiple joint disabilities (including the hands) that interfere with both manual and administrative work such as use of a keyboard as would be required for a human resources administrator. (Continued on the next page)   In reaching that conclusion, the Board acknowledges that a June 2018 Advisory Opinion regarding entitlement to TDIU on an extraschedular basis prior to December 12, 2012, concluded that entitlement to TDIU was not shown for that time period. The advisory opinion summarized the medical evidence from 2010 to 2012, calling attention to the impairment from individual disabilities. However, the finding of no combined impact was conclusory, and there was no discussion of education, experience, or the occupational skills that the Veteran could or could not employ. Notwithstanding the conclusions of the Director, Compensation Service, the Board notes that in Kuppamala v. McDonald, 27 Vet. App. 447 (2015) the Court of Appeals for Veterans Claims held that an extraschedular decision by the Director, Compensation Service, is one of fact that is reviewable by the Board on a de novo basis and that the Board may assign an extraschedular rating when reviewing either a grant or a denial of an extraschedular rating by the Director. In this case, the Director failed to reconcile the above-noted contradictions that form the basis for the Board’s decision herein. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel