Citation Nr: 18153611 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-29 040 DATE: November 28, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) TDIU for the period beginning February 4, 2017 is granted. REMANDED Th issue of entitlement to a TDIU on an extraschedular basis prior to February 4, 2017 is remanded. FINDING OF FACT The Veteran’s service connected conditions rendered him incapable of maintaining substantially gainful employment from the period beginning February 4, 2017. CONCLUSION OF LAW Effective February 4, 2017, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to January 1973. Entitlement to a TDIU for the period beginning February 4, 2017 The Veteran contends that his service-connected disabilities prevent him from securing or following any substantially gainful employment. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, this disability shall be ratable at 60 percent or more, or 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. Id. The Veteran is currently service-connected for the following disabilities: (i) a lumbar strain with spondylosis and degenerative joint disease, rated as 40 percent disabling from June 27,1997; (ii) left leg radiculopathy rated as 20 percent from September 29, 2010; and (iii) right leg radiculopathy, rated as 10 percent disabling from February 4, 2017. This results in a combined rating of 50 percent from February 13, 2007 and 60 percent from February 4, 2017. Because the radiculopathy of the left and right lower extremities is associated with the lumbar strain, these disabilities may be considered as a single disability based on common etiology, rated 60% from February 4, 2017. Therefore, the Veteran meets the schedular criteria for the Veteran met the schedular standards for a TDIU rating under 38 C.F.R. § 4.16 (a) from February 4, 2017. In support of his claim, the Veteran submitted an August 24, 2017 opinion by Dr. R.M., which stated that the Veteran’s service connected lumbosacral strain and paralysis of the sciatic nerve prevent the Veteran from obtaining gainful employment to include sedentary employment. An April 2017 VA examination on the Veteran’s low back showed that the Veteran was limited in bending, sitting, standing, walking, jogging or running. Based on these limitations, the examiner found that the Veteran’s low back condition did impact his ability to work. During the Veteran’s April 2017 knee and lower leg examination, the Veteran stated that he is unable to walk long distances, unable to jog, run or kneel. The functional limitations listed in the Veteran’s April 2017 nerve examination also stated that the Veteran is limited in prolonged sitting, standing, walking, jogging or running. A private medical opinion from Dr. S.K. dated August 31, 2017 stated that the Veteran’s low back disorder and bilateral lower extremity radiculopathy render the Veteran unemployable because the Veteran is unable to sit for over 30 minutes, and is computer illiterate, and that the Veteran’s inability to walk without a walker precludes him from doing any physical labor. In support of this contention, Dr. S.K. noted that the Veteran is unable to walk more than one block without severe pain, requires a walker to ambulate, and has difficulty bending and standing from a seated position. The opinion further stated that the Veteran reports 6/10 back pain and 8/10 pain during flare ups. The statement also noted that radiology reports show degenerative changes with diffuse disc bulging throughout the entirety of the lumbar spine, and that the Veteran is homeless, living off collected materials for recycling. As noted above, numerous physicians have opined that the Veteran’s service connected disabilities have significant functional effects on occupational activities. In light of the medical evidence of record, the Board finds that the Veteran’s service-connected disabilities affect the Veteran’s occupational functioning in preventing him from performing duties within his skill set. Therefore, the Board finds that a TDIU is warranted from February 4, 2017, the date the Veteran met the schedular criteria. REASONS FOR REMAND Entitlement to TDIU on an extraschedular basis prior to February 4, 2017 is remanded. Prior to February 4, 2017, the Veteran did meet the schedular criteria for a TDIU. However, even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU 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. 38 C.F.R. §4.16 (b). In the present case, there is evidence that suggests that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. §§ 3.340, 4.16(b). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, 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. According to the Veteran’s VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received March 8, 2012 (submitted another form on October 30, 2013 and a third on March 31, 2014), the Veteran last worked in the year 2000 as a janitor. The Veteran noted that he did not graduate from high school. At the March 2012 VA examination, the Veteran was noted to be homeless and collecting cans to make money. In the functional impairment section of the questionnaire, the examiner noted the Veteran’s reported history of being unable to maintain employment due to back pain and computer illiteracy. An April 2014 VA-21-2680 Examination for Housebound Criteria Form shows that the Veteran has difficulty walking and ambulates with a front wheel walker with seat for frequent rest periods, and that the Veteran is on pain medication for chronic pain. Based on this evidence, it appears that the Veteran may have been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to February 4, 2017. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation Service, for consideration of entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action:   Refer the case to the Director, Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis prior to February 4, 2017 pursuant to the provisions of 38 C.F.R. § 4.16 (b). J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leigh Hoover