Citation Nr: 18154722 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 10-45 986 DATE: November 30, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted, effective June 14, 2010. FINDINGS OF FACT 1. Service connection is in effect for degenerative disc disease of L5-S1, rated as 10 percent disabling prior to July 3, 2010, and 20 percent thereafter; and radiculopathy of the right lower extremity, rated as 10 percent disabling, effective June 14, 2010. The combined disability rating is 30 percent, effective July 3, 2010. 2. The Veteran has not worked full-time since December 2008; he has completed three years of high school and has work experience as a truck driver and a custodian. 3. The Veteran’s service-connected disabilities are of such a nature or severity as to prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for an extraschedular TDIU, effective June 14, 2010, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1964 to October 1967. The appeal was most recently before the Board of Veterans’ Appeals (Board) in August 2017, when the Board denied the claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) in April 2018. By order dated in May 2018, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. The case is now before the Board for final appellate consideration. A February 2009 rating decision granted service connection for degenerative disc disease of L5-S1, evaluated as 10 percent disabling effective June 20, 2008. A March 2013 Board decision denied a higher initial rating for degenerative disc disease of L5-S1 prior to July 3, 2010, and granted a 20 percent rating from that date. The Board also remanded the matter of entitlement to a TDIU for additional development. A September 2014 rating decision granted service connection and assigned a 10 percent rating for radiculopathy, right lower extremity, effective June 14, 2010. In April 2016, the Board remanded the claim for extraschedular consideration, pursuant to 38 C.F.R. § 4.16 (b). TDIU may be assigned to a Veteran who meets certain disability percentage thresholds and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16 (a). If a veteran fails to meet the percentage standards set forth in § 4.16(a) (one disability evaluated at 60 percent or more, or two or more disabilities (at least one of which is evaluated at 40 percent) with a combined evaluation of at least 70 percent) but is "unemployable by reason of service-connected disabilities," the matter should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Service connection is in effect for degenerative disc disease of L5-S1, rated as 10 percent disabling prior to July 3, 2010, and 20 percent thereafter; and for radiculopathy of the right lower extremity, rated as 10 percent disabling effective June 14, 2010. The combined disability rating, effective July 3, 2010, is 30 percent. The Veteran does not meet the schedular requirements for a TDIU. The question is whether the Veteran is entitled to an extraschedular TDIU. The Board finds that he is so entitled, effective June 14, 2010, the effective date of service connection for radiculopathy of the right lower extremity. Consideration has been given to the Veteran’s level of education, special training, and previous work experience in arriving at this conclusion. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). On a VA Form 21-8940, Application for TDIU, submitted in April 2013, the Veteran reported that he last worked in December 2008, as a janitor, and stopped working because of back pain. He reported having completed 2 years of high school. In a VA Form 21-8940 submitted in June 2018, the Veteran reported that he earned his highest annual income in 1997, when he worked as a truck driver. The report of an August 2008 VA examination includes a medical history reflecting that the Veteran had had back pain since active service and that he later noticed pain radiating into his left leg. He reported flare-ups of pain with prolonged sitting, which was relieved by standing. He did not use a cane or a brace, and he was able to walk for about thirty minutes or one-quarter mile. The Veteran reported difficulties with prolonged sitting, standing, and driving a car. He was not currently employed, and had not been prescribed bed rest by a physician. The report of a July 2010 VA examination reflects progressively worsening back pain, with pain radiating to the anterior portion of his thighs and the inside of his legs. The Veteran also reported some weakness in his legs when lying down, and reported using a cane to walk on occasion. He also reported using a back brace, and he was able to walk approximately thirty minutes or for about two miles. When he sat for a prolonged period, he felt "a knot" pop up in his lumbar spine; and with any kind of movement, he had significant pain. He reported being afraid to lift objects, or to bend over to pick up objects. He currently was not working. In April 2013, the Veteran reported receiving several injections in his spine in 2010. He reported that a physician then told him not to ride a lawn mower, push a lawn mower, use a weed eater, or use a post hole digger; and that using these items was bad for his back condition. The Veteran reported that, currently, he could not sit down for long periods of time without raising up to relieve the pressure. Pursuant to the Board's March 2013 remand, the Veteran underwent additional VA examinations. Following examination in May 2013, a VA physician noted that the Veteran last worked in December 2008 as a custodian at a church; and that he previously worked as a truck driver for thirty years. The Veteran reportedly retired due to low back pain with radiculopathy, and contended that he was unemployable from both physical and sedentary work. He also reported that his nonservice-connected disabilities - consisting of gastroesophageal reflux disease, hypertension, hyperlipidemia, allergic rhinitis, colonic polyps, erectile dysfunction, and residuals of right tibio-fibular fractures - did not impact his ability to work. In May 2013, another VA physician opined that the Veteran's low back disability did impact his ability to work because he was unable to perform heavy lifting or prolonged walking or standing. VA records show that the Veteran underwent an elective right L5-S1 laminectomy and diskectomy, foraminotomy, in June 2014. Following the surgery, the Veteran remained stable neurologically, and his pain was well-controlled. Follow-up treatment in July 2014 reflects that the Veteran was doing well, and he reported that his leg pain was gone. He reportedly still had some occasional back pain as was expected; however, the radiculopathy was markedly improved. Records show that the Veteran ambulated well; he reported walking a half-mile daily and reported being off all pain medications. Pursuant to the Board's April 2016 remand, the AMO submitted the case to the Director of Compensation Service for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16 (b). In February 2017, the Director of Compensation Service (Director) noted that the report of a May 2013 VA thoracolumbar spine examination included ranges of motion testing of the lumbar spine, and revealed a mild restriction of normal motion; and described the right lower extremity radiculopathy as mild. The Director also noted that a May 2013 examiner found that service-connected disabilities prohibited heavy lifting and affected prolonged standing or walking. Of note, the Director indicated that the Veteran was receiving Social Security benefits based on age, and not based on disability. Nor was there any evidence of record reflecting that the Veteran could not work in a sedentary basis due to his service-connected disabilities. Lastly, VA records following the June 2014 surgery revealed overall improvement in the Veteran's pain. Following a review of the record, the Director concluded that the evidence did not demonstrate that the Veteran was unable to secure and follow any substantially gainful occupation by reason of any service-connected disability, or by a combination of service-connected disabilities. In a June 2018 statement, the Veteran related that he had not worked since December 2008 when he left his job as a church custodian due to service-connected disabilities. He explained that his service-connected back disability had made it difficult for him to complete his responsibilities. He was in constant pain, which worsened when he tried to do anything physical. His back would frequently spasm without warning and sometimes the pain was so great that he fell to his knees. During the last year of his employment, he typically called out of work 3 times a month. On those days, it was a struggle for him to walk or even move. In addition to the back, the Veteran stated that his right leg radiculopathy caused persistent numbness. His leg felt weak and caused him to lose balance. He was constantly worried that he would fall while at work, especially as he was often required to use a ladder. Following his retirement, he fell 4 or 5 times a year on average due to this condition. The Veteran noted that following surgery about 4 years earlier, his pain improved slightly but his back was still very weak and the pain continued to radiate into his right hip and thigh. Due to the back condition, he could not walk for more than 10 minutes, even with the use of his cane. He stated that his right leg radiculopathy had continued to worsen since his retirement. His right leg was constantly numb and always felt weak. He could only stand still for up to 5 minutes before his leg would start giving out on him. Currently, he could sit for maybe 5 minutes before he had to move or raise his legs up. He could not be seated for longer because his lower spine would be compressed. He could not sit up in bed for more than 10 minutes or so before his leg and hips go numb. He used a cane on a daily basis but used a wheelchair whenever one was available, such as during his appointments at the VA hospital. He stated that even if he could sit at a desk for a reasonable amount of time, he did not know how to operate a computer and had no experience typing. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a result, the Board finds that the Veteran's contentions support his claim. An earnings record submitted by the Veteran’s representative in October 2018 showed the Veteran had taxed Social Security earnings of $18300 in 2008, $700 each in 2009 and 2010, and no earnings since 2010. A September 2018 private Vocational Employability Assessment relates that it was based a review of the Veteran's VA claims file and an interview with the Veteran. The report relates that the Veteran had an 11th grade education and no computer skills. The report reviews the Veteran's employment history (a truck driver and then custodian), medical history, functional status, and subjective physical complaints in detail. The report also reviews statements from lay witnesses. The examiner summarized that the Veteran's limitations at least as likely as not precluded him from performing work at sedentary employment. The Veteran's service-connected physical symptoms and functional limitations prevented him from meeting the expectations of his work as both a truck driver and custodian. His physical limitation at least as likely as not also precluded him from performing work even at a sedentary level. Even if the Veteran was able to physically perform sedentary work he did not have the transferable skills to qualify for sedentary employment due to his 11th grade education, absence of computer skills and a work history limited to low-skilled labor. The Veteran's history of absenteeism and the need to self-pace his work precluded him from performing work reliably and productively on a consistent basis. Therefore, based on the evidence presented to this Vocational Expert, due to the Veteran's service-connected disabilities, it was at least as likely as not that the Veteran had been unable to secure and follow substantially gainful employment since at least June 2010, when he became service-connected for radiculopathy of the right lower extremity associated with degenerative disc disease of L5-S1. The Board finds that this opinion is probative and supports the Veteran's claim, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds it significant that the medical evidence shows that the Veteran’s service-connected disabilities render him both unable to perform heavy lifting and prolonged walking or standing, and unable to work at even a sedentary level. The Board also finds it significant that the medical evidence shows that the Veteran has been unable to perform sedentary work even after his 2014 back surgery. Given the impairment related to the Veteran's service-connected degenerative disc disease of L5-S1 and radiculopathy of the right lower extremity, and considering his work and education history, he is precluded from securing and following substantially gainful employment due to his service-connected disabilities. As a result, an extraschedular TDIU is warranted from June 14, 2010, the effective date of the Veteran's award of service connection for radiculopathy. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Davitian, Counsel