Citation Nr: 18156600 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-60 055 DATE: December 11, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to January 8, 2017, is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft (excluding periods which a temporary total rating under 38 C.F.R. § 4.30 was in effect) is remanded. Entitlement to a TDIU from January 8, 2017 is remanded. FINDING OF FACT The most probative evidence of record establishes that during the period from April 10, 2011 through January 7, 2017, the Veteran was substantially gainfully employed as a unit program coordinator for the Air Force. CONCLUSION OF LAW The criteria for entitlement to a TDIU, prior to January 8, 2017, have not been 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 had active service from December 2002 to December 2006. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. The record reflects that the Veteran’s TDIU claim was most recently denied in a September 2018 rating decision; however, pursuant to Rice a claim for a TDIU is part of the appeal for a higher initial evaluation currently before the Board, as the Veteran in a May 2018 application for benefits, in part, asserted she was unemployable due to her myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft disability, and must be adjudicated as such. 1. Entitlement to a TDIU prior to January 8, 2017 Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow substantially gainful employment as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director, Compensation Service, for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). As discussed above, entitlement to a TDIU has been raised as part and parcel of the Veteran’s disagreement with the rating assigned for her myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft, which stems from an April 10, 2012 claim for increase. Rice, 22 Vet. App. at 453-54. Thus, the period for consideration on this appeal for a TDIU is from April 10, 2011. 38 C.F.R. § 3.400. In this regard, for the period prior to January 8, 2017, specifically from the one year preceding receipt of the TDIU claim, April 10, 2011, service connection was established for posttraumatic stress disorder (PTSD), rated as 10 percent disabling effective December 10, 2006 and 30 percent disabling effective May 16, 2012; a gastrointestinal disorder rated 10 percent disabling effective December 26, 2007 and 30 percent disabling effective February 14, 2018; lateral epicondylitis of the left elbow rated 10 percent disabling effective December 10, 2006; acephalic migraines rated 10 percent disabling effective December 10, 2006; left lower extremity radiculopathy rated 10 percent disabling effective May 17, 2013; myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft, rated as 10 percent disabling effective December 10, 2006 (excluding periods which a temporary total rating under 38 C.F.R. § 4.30 was in effect), right lower extremity radiculopathy rated noncompensable effective May 17, 2013 and 10 percent disabling effective February 14, 2018; right lateral meniscal pathology rated noncompensable effective December 10, 2006; hemorrhoids rated noncompensable effective December 10, 2006; scars on back rated noncompensable effective February 6, 2017; scars status post laminectomy rated 20 percent disabling effective February 22, 2016 and noncompensable effective December 1, 2017. Thus, the Veteran met the requirement that at least one disability must be rated at 40 percent or more, based on the combined ratings for left lower extremity radiculopathy, right lower extremity radiculopathy, myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft, and scars status post laminectomy, as disabilities with a common etiology for the purposes of meeting the TDIU threshold from February 22, 2016 to November 30, 2017, or, as a relevant to the issue here, from February 22, 2016 to January 7, 2017. Moody v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1492 (Nov. 8, 2018). However, the Veteran did not meet the combined schedular rating of 70 percent prior to September 1, 2016, but she did meet the combined schedular rating of 70 percent effective September 1, 2016. Accordingly, the schedular percentage requirements for a TDIU were not met from April 10, 2011 to August 31, 2016, but were met from September 1, 2016 through January 7, 2017, although the Board recognizes such could change based on the claim for an increased rating for myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft that is remanded below. Nonetheless, as discussed below, the evidence reflects the Veteran has been gainfully employed throughout the rating period on appeal. Thus, there is no entitlement under the law to the benefit sought and there is no prejudice to the Veteran by the Board’s adjudication of entitlement to a TDIU prior to January 8, 2017 at this time, nor any prejudice as to additional development directed below. Specifically, in this case, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability, received by VA in May 2018, and reported she last worked full-time July 22, 2015 and became too disabled to work on January 7, 2017. She further reported, in part, that she last worked 40 hours a week for the Air Force with the type of work as a unit/program specialist, and worked 40 hours per week from June 1, 2014 to January 17, 2017 but lost two years from illness. Also of record is a July 2018 VA Form 21-4192, Request for Employment Information, from the Veteran’s prior employer, the Air Force, which reported the Veteran was employed from April 12, 2010 until January 7, 2017, and that she worked 40 hours as unit program coordinator. The July 2018 VA Form 21-4192 reported the Veteran resigned from employment and did not have any time lost due to disability during the 12 months preceding the last date of employment. The Board recognizes that the Social Security Administration, in an August 2018 decision, found the Veteran had not engaged in substantially gainful activity since February 21, 2016, the alleged onset date as reported for their purposes; however, such a finding is not binding on VA. Moreover, such is contrary to the other evidence of record. As discussed above, the record reflects the Veteran was considered to have been employed throughout the appeal period, from April 10, 2011 until January 7, 2017. As described above, prior to January 8, 2017, the evidence reflects the Veteran was employed as by the Air Force as a unit program coordinator. The Board affords the July 2018 VA Form 21-4192, Request for Employment Information, from the Veteran’s prior employer, the Air Force, significant probative weight as such is consistent with the other evidence of record, including the Veteran’s own report that she became too disabled to work on January 7, 2017. Further, although the Board recognizes the Veteran also reported in her May 2018 application for TDIU that she last worked full-time July 22, 2015, conversely, she also reported she last worked 40 hours per week from June 1, 2014 to January 17, 2017 but became too disabled to work January 1, 2017. The Board is unclear as to if January 17, 2017 was a typographical error; however, the Board will resolve reasonable doubt in the Veteran’s favor and determine she last worked January 7, 2017 as such is consistent with other evidence of record. Although the Veteran has stated her service-connected disabilities impacted her employment before January 7, 2017, as she described time lost from work and other impacts, the evidence does not show that she was unemployable prior to that time, including by her own report that she became too disabled to work on January 7, 2017. Moreover, impact as to difficulty with certain duties or missing some hours or days of work is not the equivalent of being precluded from substantially gainful employment. The policy behind providing the Veteran disability compensation benefits is to compensate the Veteran for the functional impairment caused by her service-connected disabilities. Therefore, impacts such as difficulty with certain duties or missing work as a result of her service-connected disabilities, without being precluded from employment altogether, is reflected in the Veteran’s assigned disability evaluations. Thus, as the evidence does not show that the Veteran was precluded from substantially gainful employment as a result of her service-connected disabilities prior to January 7, 2017, entitlement to a TDIU did not arise prior to January 7, 2017. In light of the fact that the most probative evidence demonstrates the Veteran has been gainfully employed on a full-time basis throughout the rating period on appeal, there is no entitlement under the law to the benefit sought. As such, the claim of entitlement to a TDIU prior to January 7, 2017 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); 38 C.F.R. § 4.16. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft (excluding periods which a temporary total rating under 38 C.F.R. § 4.30 was in effect) is remanded. Additional evidence relevant evidence developed by VA, to include an April 2018 back conditions disability benefits questionnaire, was associated with the record subsequent to the most recent, October 2016, statement of the case issued as to the increased rating claim for myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. Thus, a remand for AOJ consideration of this evidence is warranted. As the Veteran’s myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft is remanded, the Board concludes updated private treatment records should be obtained and associated with the record. Private treatment records from various private providers; such as treatment records from Orthopaedic Associates, most recently dated in August 2018, are of record, however, the Board is unclear as to whether such records are complete or if the Veteran has received more recent treatment. Complete private treatment records should be obtained, to the extent possible. Finally, in light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran most recently received VA treatment from the Biloxi VA Medical Center, part of the Gulf Coast Veterans Health Care System, in August 2018. Thus, on remand, updated VA treatment records from the Gulf Coast Veterans Health Care System, since August 2018, should be obtained and associated with the claims file. 2. Entitlement to a TDIU from January 8, 2017 is remanded. As noted above, the issue of entitlement to a TDIU from January 8, 2017 is, in part, based on the Veteran’s service-connected myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft. Thus, as the issue of entitlement to a TDIU from January 8, 2017 is intertwined with the increased rating claim for myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft, a remand is warranted for the claim for TDIU from January 8, 2017. Harris v. Derwinski, 1 Vet. App. 180 (1991). These matters are REMANDED for the following actions: 1. Obtain the Veteran’s updated VA treatment records, if such exist, from Gulf Coast Veterans Health Care System, to include from the Biloxi VA Medical Center, since August 2018, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and her representative must be notified of any inability to obtain the requested documents 2. Obtain the necessary authorization from the Veteran and then attempt to obtain updated private treatment records, to include from Orthopaedic Associates, related to the Veteran’s myofascial lumbar syndrome post right sacroiliac fusion and iliac autograft, not already of record. All attempts to obtain these records must be documented in the claims file. The Veteran and her representative must be notified of any inability to obtain the requested documents 3. Readjudicate the issues on appeal with review of all evidence received since the last prior adjudication of the Veteran’s claims. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel