Citation Nr: 18159600 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 10-49 744 DATE: December 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted on and after April 19, 2007. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities do not meet the percentage requirements for the award of a schedular TDIU prior to July 9, 2008, but the evidence indicates that the nature and severity of his service-connected disabilities have prevented him from performing gainful employment for which his education and occupational experience would otherwise qualify him since April 19, 2007. 2. The Veteran’s service-connected disabilities have met the percentage requirements for the award of a schedular TDIU since July 9, 2008, and the evidence indicates that the nature and severity of these disabilities have prevented him from performing gainful employment for which his education and occupational experience would otherwise qualify him since April 19, 2007. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for the award of a TDIU on an extraschedular basis have been met from April 19, 2007 to July 8, 2008. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for the award of a TDIU on a schedular basis have been met on and after July 9, 2008. 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 in the Army from July 1980 to March 1981. This matter is on appeal from a November 2007 rating decision. This issue was previously remanded by the Board in May 2015 for the issuance of an updated Supplemental Statement of the Case (SSOC). The Agency of Original Jurisdiction (AOJ) did so. In March 2016, the Board found the SSOC inadequate and remanded for the issuance of an additional SSOC. In March 2017, this issue was again remanded to be referred to the Director of the Compensation Service for extraschedular consideration for the period before the schedular criteria set forth in 38 C.F.R. § 4.16(a) were met. The AOJ has done so. There was substantial compliance with the remand directives with regard to the issue being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). 1. TDIU from April 19, 2007 to July 8, 2008 VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). From April 19, 2007 to July 8, 2008, the Veteran was service-connected for spondylolisthesis L5, S1, which was rated 40 percent disabling; symptomatic posterior neck region, which was rated 20 percent disabling; and status post recurrent folliculitis, which did not have a compensable rating. The criteria for consideration of a schedular TDIU were therefore not met prior to July 9, 2008. If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration 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); Fanning v. Brown, 4 Vet. App. 225 (1993). The Director concluded in November 2017 that the Veteran was not unemployable due to his service-connected disabilities prior to July 9, 2008 and that a TDIU was not warranted under the provisions of 38 C.F.R. § 4.16 (b) during that period. However, there is no restriction on the Board’s ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). The Veteran has submitted a June 2006 medical opinion by his private treatment provider, who opined that he was permanently unemployed due to his L5-S1 disc disease and lumbar muscular spasms. VA received the Veteran’s claim for a TDIU on August 20, 2007. The Veteran reported that he last worked full-time in 2002 and that he had last worked as a warehouse supervisor. He ascribed his unemployment to his service-connected back and neck disabilities. In an October 2009 decision, the Social Security Administration (SSA) found that the Veteran had been disabled due to his back and psychiatric disabilities since December 15, 2002. SSA determinations, while relevant, are not binding upon the Board. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In an August 2017 statement, the AOJ recommended that entitlement to a TDIU on an extraschedular basis be denied from April 19, 2007 to July 8, 2008. Because the AOJ considered the period on appeal to have begun on April 19, 2007, even though VA did not receive the Veteran’s claim until August 20, 2007, the Board will consider the period on appeal to have begun on April 19, 2007. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). The Director of the Compensation Service disagreed with this recommendation in November 2017 and found that entitlement to a TDIU on an extraschedular basis was not warranted during the period on appeal. The Director’s finding is not evidence, it is simply a decision that is adopted by the AOJ and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Veteran’s treatment provider has found him to be unemployable throughout the period on appeal as a result of his service-connected back disability. The record contains no medical opinion to the contrary. SSA has also found the Veteran to be unemployable throughout the period on appeal but ascribed his unemployability to a combination of his service-connected back disability and his psychiatric disability, which was not service-connected until July 9, 2008. However, SSA found the Veteran’s back disability to be the primary cause of his unemployability. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities rendered him unemployable under the applicable regulations from April 19, 2007 to July 8, 2008. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU on an extraschedular basis is warranted from April 19, 2007 to July 8, 2008. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. TDIU on and after July 9, 2008 The Veteran’s combined disability rating on and after July 9, 2008 is 100 percent: his flaccid paralysis of the left lower extremity is rated 60 percent disabling, his flaccid paralysis of the right lower extremity is rated 60 percent disabling, his spondylolisthesis L5, S1 is rated 40 percent disabling, his recurrent major depressive disorder is rated 30 percent disabling, his symptomatic posterior neck region is rated 20 percent disabling, his left shoulder impingement syndrome is rated 20 percent disabling, his gastroesophageal reflux disease (GERD) is rated 10 percent disabling, and his status post recurrent folliculitis and erectile dysfunction do not have compensable ratings. As the Board noted in its March 2017 decision, consideration of entitlement to a TDIU is not rendered moot automatically by the assignment of a 100 percent schedular rating. A veteran may be awarded special monthly compensation under 38 U.S.C. § 1114(s) (2012) based upon a finding that a single disability supports a TDIU rating and other service-connected disabilities are separately ratable at 60 percent or more. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Board has found above that the Veteran is unemployable on and after April 19, 2007 as a result of his service-connected back disability. Because two of the Veteran’s other service-connected disabilities are individually ratable at 60 percent, even before counting the rest of his service-connected disabilities (which would result in a combined rating of 90 percent under 38 C.F.R. § 4.25 (2017)), entitlement to a TDIU is warranted despite the Veteran’s 100 percent schedular rating on and after July 9, 2008. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel